Loxston, Re

This is a dispute about the estate of the late Miss Dorothy Loxston, who died on 8^th September 2003, aged 98. The issue between the parties is whether her true last will was her will dated 1^st March 1990 or her will dated 30^th January 2003. Her main assets were a house at 38 Albermarle Road, East Barnet, in which she had lived since the 1920s, and which is worth about £275,000, and a portfolio of shares valued at approximately £513,000.

Miss Loxston was born on 29^th March 1905. Her father died in 1914 and she and her older brother,

John Loxston died in 1979, leaving his sister the share portfolio already mentioned, and she alsobecame the sole owner of the house at Albemarle Road. On 26^th August 1980, Miss Loxston appointed the Midland Bank Trust Company (now HSBC) to act as her nominee and investment adviser. From April 1989, her affairs were looked after by Mr Stephen Rhodes, then an investment manager at the Midland Bank and now a Senior Premier Manager at HSBC, who gave oral evidence at the hearing. He used to visit her annually to carry out a review of her affairs, and in the last few years his visits became more frequent as her increasing age gave rise to various issues. On 24^th January 1996, at Mr Rhodes' suggestion, Miss Loxston executed an enduring power of attorney in favour of HSBC. This was registered on 22^nd June 2001.

Although Miss Loxston had no immediate family after the death of her brother, she did have contactthroughout her life with her cousins in Yorkshire, although less so towards the end of it. Her mother's brother, William Middleton Abbott (1855-1937) was responsible for setting up a successful family cabinet and furniture making business in Ripon in the second half of the 19th century, called WM Abbott & Co. It is still flourishing. He had six children in all, one of whom died in infancy and two of whom left the Ripon area. The other three, however, remained in the Ripon area, to which Miss Loxston made regular visits.

The oldest of the three children who remained in Ripon was Annie Gladys (1884-1972), WilliamMiddleton Abbott's daughter by his first marriage. The others were two of his three sons by his second marriage, William Clare Abbott (1890-1962) and Arthur Wesley Abbott (1901-1980). William Clare Abbott had three children, all of whom are still living, namely, Dorothy (b 1923), Kathleen (b 1926) and Ronald (b 1931), the first-named Claimant. Arthur Wesley Abbott also had three children, Barbara Clare (b 1928), Colin (1929-1988) and Michael (b 1934). Colin was married to Marion nee Spence, and they have a son, Dr Richard Abbott, who lives in the United States.

By all accounts, Miss Loxston was a very fit and active lady in her youth. At the end of her life, shekept by her side “A Tramp Abroad” by Mark Twain, because it reminded her of her walking holidays in

Her first known will was made on 1^st October 1980. She left her house to a Mr Norman Boulton, who I assume was a friend, her grand piano and Alexander horn to the Royal College of Music, her upright piano to Christchurch, Cockfosters, her besson French horn and her other musical instruments to June Eaton, also presumably a friend at the time. She gave a total of £1,000 to six other friends (including Marjorie Stroud) and she left the remainder of her estate to seven charities including Help The Aged. In a codicil dated 7^th May 1982, she revoked the bequest to Mr Boulton and left the house on trust for sale, the proceeds to be divided equally between her six second cousins, the children of William Clare Abbott and Arthur Wesley Abbott. In a codicil dated 23^rd January 1987, she revoked the bequests of her musical instruments, and replaced them with seven legacies of her musical instruments to six friends (there was also a gift of her music cabinet to Dr Ashwin) and to the Senior Citizens Light Orchestra, Winchmore Hill.

On 1^st March 1990, Miss Loxston made a new will with similar small pecuniary bequests to friends, and similar bequests of her musical instruments to friends and to the Light Orchestra. She

Both wills were drafted by Midland Bank's executor and trustee department, on Miss Loxston'sinstructions. It is clear from a letter from Mr Rhodes to Miss Loxston dated 10^th June 1990 that she kept a copy of the 1990 will in the house. At that time, she did not wish to make any changes to it.

By 1997, Miss Loxston had become more frail physically. She had had occasional cleaning help overthe years, and the Defendant, Elizabeth Richardson, started to work for her, at first on one day a week. This was at the suggestion of Dorothy Parry. The exact date when she began to work for Miss Loxston is a minor issue in the case, but I find that it was sometime in 1997, probably in the second half of the year. At the time she too lived in Albermarle Road. Gradually, the time she worked, and the range of duties she carried out, increased. However, Miss Loxston continued to live alone, and to be able to get up, get dressed and make breakfast on her own, until July 2003.

It is clear from all the evidence that from the first Mrs Richardson treated Miss Loxston very well, onoccasions helping her in ways which were beyond the call of duty, for example taking her out in her car, and that Miss Loxston liked to be looked after by Mrs Richardson and regarded her as a friend. I have no doubt, having heard her evidence, that Mrs Richardson was genuinely fond of Miss Loxston and that this was reciprocated.

On 30^th January 2003, Miss Loxston - then aged 97 - made her last will. She appointed Mrs

The Claimants' case is that by January 2003 Miss Loxston no longer had the mental capacity to makea will, that there was a want of knowledge and approval and that, in any event, her last will was procured by the undue influence of Mrs Richardson.

The main witness in support of the Claimants' case was Dr Ashwin, who was very concerned with MissLoxston's welfare in the last ten years of her life and actively looked after her interests in many ways.

The Claimants' case was also supported by the witness statements and evidence of Mr Rhodes and ofMr Roland Irving, who was Miss Loxston's gardener and handyman from early 1999, and by a witness statement of Dorothy Parry. There was also the witness statement and oral evidence of the First Claimant, Ronald Abbott, explaining the relationship between Miss Loxston and her cousins in Ripon, and the witness statement of Dr Richard Abbott, mainly about a visit to her in July 2001.

Mrs Richardson's case is that she and Miss Loxston became friends and that Miss Loxstonspontaneously offered to leave her the house and was at all times anxious to make a new will, but was frustrated in her efforts to do so by the opposition of Dr Ashwin, who was also from the outset consistently antagonistic to Mrs Richardson. Her evidence is that Miss Loxston remained mentally capable, and insisted on her finding a solicitor to help her make a will without the assistance of Dr Ashwin or Mr Rhodes; once this was achieved, Miss Loxston was greatly relieved. Mrs Richardson herself had not taken the initiative at any stage.

Mrs Richardson also relied on the evidence of two solicitors. The first was Mr Christopher Thomas, thesole principal of Braikenbridge & Edwards. He took instructions from Miss Loxston in August 2000 with a view to making a will, but was not satisfied at the end of the meeting of her wishes or (one way or the other) as to her mental capacity. Despite subsequent correspondence, he never took the matter any further because he learned that HSBC was in the process of registering the power of attorney. Mrs Richardson relies, on the issue of undue influence, on his evidence that he was satisfied at the time that there was none. The second solicitor was Mr David Lesser, who practised for 37 years as DJ Lesser & Co, and who, following his retirement in 1998, runs a will service called the Regent Wills Service from his home with the assistance of his wife. Both gave evidence about the taking of instructions from Miss Loxston, and the execution of the will in January 2003. Mrs Richardson relies on their evidence both on the issue of mental capacity and in support of her case that there was no undue influence. She also relies on a witness statement by Carol Ribeiro, a bath care attendant who visited Miss Loxston once a week from November 1999.

There is a medical report from Dr McElligott who, with his partner Dr Miles, looked after Miss Loxstonat their practice in East Barnet. His work regularly involves assessing the mental health of the elderly. He did not carry out a formal mental state examination, as it was not appropriate or necessary at any stage. His recollection was that Miss Loxston's mental state was deteriorating “during the course of 2003”. He was not able to comment on her testamentary capacity, except to say that she was not on any medication which would have affected her mental state at any time.

I have also seen copies of Miss Loxston's medical notes. They suggest that although frail, and proneto injuring herself by falling, she was in good physical health for her age until her final decline which started in July 2003 following two further falls. In the years from 1997 to 2002, there are respectively 2, 8, 3, 2, 7 and 2 entries, all of which relate either to her eyesight or to minor physical problems. A note dated 23^rd February 2001 in her medical records records “Not suffering from any mental illness so far as I am aware”. On 6^th June 2002 Dr Miles recorded her as being “a little more confused than usual” after a fall. In early February 2003, shortly after the will was signed, she went into hospital for four days with acute gastro-enteritis. She was assessed as having “mild dementia” and being “very confused” at the time of admission, but this may well have been due to the illness.

There are also experts' reports, by Dr RF Kehoe, a consultant psychiatrist, on behalf of the Claimants,and by Dr Master, also a consultant psychiatrist, on behalf of the Defendant. They are agreed that no significance is to be attached to the diagnosis of mild dementia on 2^nd February 2002, both because the doctor who admitted Miss Loxston would not have been in a position to make a proper diagnosis and because any symptoms may have been due to her temporary physical condition which began on

Mr Ronald Abbott's witness statement consisted of an assembly of the recollections of other members of the family who were too unwell to give direct evidence. He exhibited what they had written, and summarised what they said as follows: -

“My sister Kathleen Abbott would correspond with Dorothy about events in Ripon, especially at Christmas and on her birthday and vice versa. After my sister became ill in November 2001 I undertook to send Dorothy greetings at birthdays and Christmas, on behalf of my sister to which she did not reply.

My sisters Kathleen Abbott and Dorothy Nelson (nee Abbott) remember that Dorothy used to come and stay in Ripon, where a lot of our family were based, from 1930 onwards, when she would have been twenty five years of age. She would stay with my aunt. Annie Hall, known as 'Auntie Gladys', my grandfather's daughter from his first marriage. My sister Kathleen recalls that Dorothy visited regularly throughout Kathleen's school and college years.

Kathleen and Dorothy (Nelson) have both told me that they have clear memories of

Dorothy coming for tea at our parent' house and that we would go for tea at Auntie Gladys' house and that we would take her on outings. Kathleen and Dorothy (Nelson) also recall that they enjoyed listening to Dorothy playing the piano, as we are a musical family.

Kathleen always remembered Dorothy at Christmas time sending her a card and often writing her letters throughout the years, something she continued to do after our parents had died. In these letters Kathleen would send her programmes of musical events that had taken place in Ripon and from the Ripon Choral Society, in which Kathleen sang. Kathleen has told me that Dorothy always wrote back and a lot of her letters talked about music, as she was highly musical.

In 1952, five years after her marriage, my sister Dorothy (Nelson) went to live on Marlborough Grove, in a house next door to Auntie Gladys, so she would see Dorothy more regularly during her visits. Dorothy (Nelson) recalls that Dorothy was very energetic and fond of the countryside and that she would go hiking in Wensleydale and Nidderdale and onto the Moors.

Dorothy (Nelson), moved in 1955 to Middlesbrough and then to Amesbury, Salisbury in 1959. Due to her move away from Ripon she lost touch with Dorothy, although did write to her on occasions and was always interested to hear how she was through other family members.

Dorothy (Nelson) also remembers that when Auntie Gladys died in 1972, Dorothy's visits to Ripon continued but she stayed with our uncle Wesley, our father's brother and Arthur's wife, Hilda.

My cousin, Michael Abbott, the son of my father's brother Wesley recalls that his early memories of Dorothy go back to when he was a small boy and Dorothy would come to visit Ripon and stay with my parents, his parents, or our father's step sister, Auntie Gladys. In the 1960s, during Michael's early years of marriage he lived next door to Auntie Gladys and would see Dorothy during her visits when she stayed with Auntie Gladys.

Michael has shared with me his memories of Dorothy's visits, when she would visit Wensleydale, a place she was very fond of. She would always miss the bus back to Ripon and be late for the evening meal that Auntie Gladys had prepared for her and Auntie Gladys would give her a 'ticking off'.

Michael has told me that like my own family, when Dorothy became unable to travel, contact was made through Christmas cards and letters which were responded to until the later years of Dorothy's life.

Michael's son Adrian was visiting friends in London in the weeks leading up to Dorothy's death. He took the opportunity to visit Dorothy in Barnet Hospital on a couple of occasions. On his first visit Adrian took some postcards which his father had asked him to pass on, including postcards of the Yorkshire Dales and of Ripon Cathedral, to remind her of her trips to Ripon.

Adrian was aware of Dorothy's love of music and to make her stay in hospital a bit easier he decided to buy a portable compact disc player and a selection of compact discs, so that she could listen to these whilst bedridden. On Adrian's second visit to the hospital, on his way back up to Ripon, he took the compact disc player and the compact discs with him placed them at her bedside. Adrian asked the nurses to keep playing the compact discs for her. A few days later Dorothy died.

My cousin, Barbara Clegg (nee Abbott), Michael's sister has also confirmed that she has clear memories of Dorothy's visits to Ripon which continued until Dorothy was unable to travel. Barbara also exchanged birthday and Christmas cards until Dorothy's death, although she did not receive any from Dorothy from 2002 onwards.

My cousin Colin Abbott, brother of Michael Abbott and Barbara Clegg died some years ago, however his wife Marion, has shared with me her clear memories of Dorothy. In 1987 Colin and Marion's son, Richard, married and moved to Datchworth in Hertfordshire, as his wife's family lived nearby and it was close to Richard's work at GlaxoSmithKline. Dorothy lived about twenty miles away from Datchworth.

Marion would visit her son, Richard, two or three times a year and sometimes during these visits they would visit Dorothy. These thrice yearly visits with Dorothy took place from 1991 to 1996.

Marion recalls that the pattern of these visits changed quite markedly as the years went by. At first Dorothy would prepare them a 'sumptuous' tea, including dainty cucumber sandwiches, banana tea loaf and cherry and almond buns (a recipe which she had been given by Hilda Abbott during her stays in Ripon over the years). During Marion's visits Dorothy and her son Richard would play the piano and when the time came for them to leave Dorothy was often in tears as she was so attached to her Abbott connections.

Marion remembers two occasions when she was visiting Dorothy when Dorothy's friend. Dorothy Parr came to the door. When Mrs Parry saw Marion and Richard there, she immediately went away, knowing how much Dorothy treasured her time with the Abbott family. There was another occasion when Marion and Richard were visiting Dorothy when Sue Dingle, another friend of Dorothy's, who used to take her to church, called by. Richard and Marion persuaded Sue to stay and have tea with them and play the piano.

In 1995 and 1996, Richard and Marion's visits to Dorothy continue but she was no longer able to provide them with tea or play the duets on the piano with Richard.

On 10^th February 1992 Richard and his wife had a daughter, called Judith. Richard used to take Judith to visit Dorothy, but by 1995 Marion recalls that Dorothy was not well enough to appreciate small children, as her health was clearly deteriorating and she was nearly blind and becoming quite senile.

Marion also used to have contact with Dorothy by telephone. On a Sunday evening, Dorothy Parr would dial Marion's number for Dorothy and then they would chat for a few minutes, mainly talking about different members of the family. Marion would also always send birthday and Christmas cards, together with an occasional letter, to Dorothy, about musical events in Ripon and family news.

Marion has told me that when her son, Richard moved to America in April 1997 her visits to Dorothy became less frequent but that Richard would always go and see her, if possible, when he was back visiting in the UK.”

Mr Abbott had not seen Miss Loxston himself for some 50 years, but summarised her reputation in thefamily as a bohemian lady of decisive character, who did not react well to being told what to do. Asked what he meant by “a bohemian lady”, he replied that she loved the Yorkshire dales, and often went off on her own for many hours; and did not come back for meals. Her dress was unusual, and not in keeping with what Yorkshire ladies in the 1950s, 1960s and 1970s normally wore.

Dr Richard Abbott's witness statement dealt briefly with his visits to Miss Loxston, which largely endedin 1997 when he went to the United States to live. However, there was one significant visit in the summer of 2001, to which I refer in more detail below.

It was obvious from the evidence of Mr Ronald Abbott, as well as from Dr Abbott's witness statement,that the family in Ripon was very fond of Miss Loxston and that the feeling was reciprocated. This is confirmed by the evidence of Dorothy Parry, Dr Ashwin and Mr Irving, to the effect that she often spoke of her family in Ripon and had photographs of them in the house.

In this section, I summarise the factual evidence chronologically, except for the evidence relating tothe execution of the January 2003 will and Mrs Richardson's evidence, which I summarise in later sections.

The main witness for the Claimant was Dr Ashwin, who is a retired lecturer and teacher. He has aPhD in the history of education. He has neither medical nor legal qualifications. He was an impressively careful witness, whose recollection was in many respects supported by what he wrote at the time. He has no material interest in the outcome and I have no hesitation in accepting his evidence as truthful and substantially accurate factually, although I do not entirely accept the correctness of the views he formed. He met Miss Loxston in about 1980 when they were both members of the Barnet Symphony Orchestra, and they also played chamber music together, mainly clarinet and piano dues, but sometimes involving other instruments and friends. He used to visit her weekly, and they would play music together and talk. He also took out to lunch or to concerts on other occasions and they were good friends.

In later years, Miss Loxston was less able to play her instruments, but he continued to visit herfrequently and over the years and she gradually came to rely on him in a variety of ways, for example to organise the maintenance of and improvements to her house, correspondence with her doctor and Barnet Social Services, to arrange for medical treatment and to advise her on routine financial matters such as bills which she did not fully understand.

It is quite clear, not only from his own evidence but also from the evidence of Mr Rhodes and thecontemporary documents, that Dr Ashwin adopted a very protective attitude towards Miss Loxston. He considered that she had led a very sheltered life, and was in some respects innocent and naive. There is a considerable amount of evidence demonstrating that one of his main concerns was her vulnerability to a variety of unscrupulous people whom she would let into the house and who would either steal from her, or obtain excessive payment for services which they pressed on her or, on occasions, pretended to have carried out but had not.

In April 1993, he became concerned about Miss Loxston's health, because on two occasions she hadhad minor seizures, and he wrote to her doctor about this. At about the same time, he contacted Mr Rhodes, and from then on they stayed in frequent contact about many matters concerning her welfare. Dr Ashwin said that, in 1993, Miss Loxston was still fairly well physically, and reasonably competent mentally. She dealt with her own bills and outgoings and still did her own shopping. His main concern, apart from the seizures, was her vulnerability to fraud. At this time, he saw her once a week or possibly more often. Mr Rhodes confirmed that Dr Ashwin was heavily involved in caring for Miss Loxston and that he was in regular contact with him from 1993 onwards, treating him as a trusted friend of Miss Loxston. He does not appear himself to have seen anything untoward in Miss Loxston's physical or mental state during his annual visits up to 1997. A note which he made on 10^th May 1994 recorded that she did not take too much interest in her financial affairs, but that Dr Ashwin assisted her with them. In January 1996, he suggested, and she agreed, that a power of attorney was appropriate in view of her age and this was duly signed.

On 10^th November 1997, Dr Ashwin wrote to Mr Rhodes to report another occasion on which Miss Loxston was taken advantage of by somebody who demanded payment for work which was not done, and also stole her purse. He also reported more generally on her position, as follows: -

“She is now unable to do her own shopping without help, and needs help with all the basic paper work, such as Council Tax. I don't think she is able to walk out on her own. She depends upon increasing ad hoc support from a small group of friends, including Miss Marjorie Stroud, Mrs Dorothy Parry and myself. I feel that the time has come when you need to intervene and use your power of attorney to provide her with proper help and support, and also get her used to the idea of such help on a regular basis, which is likely to increase if her condition deteriorates. I take the liberty of suggesting a coupes of possibilities:

In cross-examination, Dr Ashwin said that Miss Loxston's difficulties at this stage were not all physical.Previously she had been very competent with her paperwork, but by now she was finding it very difficult to understand, for example, council tax bills. Even if she could read them, she seemed baffled by them. She kept a wallet on the piano marked Clive and put in it anything she could not understand. As he put it, there was a difference between not knowing the value of her shares, and understanding how to pay her electricity bill.

This letter led to a meeting at Miss Loxston's house between her, Dr Ashwin and Mr Rhodes, at whichthe subject of a possible carer was raised, and the question of the improvements to the house which might be needed were discussed. However, on 20^th December Dr Ashwin wrote to Mr Rhodes to say that, having given some further thought to the matter, he had decided not to proceed, because he did not think that either he or any other friend would be able to organise a system of care in the home, and that if she became too infirm to manage on her own, there would be no alternative but residential care even though she was opposed to this. In the course of this letter, Dr Ashwin wrote:

“. . . the situation is not made easier by the fact that she does not always behave completely rationally, and is not always in a position to understand and agree to all actions which might be taken on her behalf”.

This, he felt, might lead to a situation in which whoever was trying to organise her care in the home might be doing so “against a background of possible misunderstanding or disagreement from Miss Loxston.”

However, when asked about this particular passage in cross-examination, what Dr Ashwin describedwas eccentricity rather than mental incapacity. He gave as an example the fact that Miss Loxston never bought shoes and wore shoes that were twenty or thirty years old and so worn as to be dangerous. They were the reason for some of her falls. Yet she was adamantly opposed to taking them for repair. In the end Dr Ashwin found a firm which manufactured shoes for old people, took a template and bought them, putting the old shoes in the bin. When this had been done, Miss Loxston was delighted and never mentioned the fact that the old shoes had gone. Similarly, once it became clear that it might be necessary to bring somebody into the house, there was discussion about the spare bedroom which was in a dreadful state. Dr Ashwin said that Miss Loxston did not want the work done; she could not think forward to the situation that it might be in six months time. However, when the work was done, she was delighted.

In March 1998, Dr Ashwin wrote to Miss Loxton's doctor to seek advice as to her poor sight and as towhat appraisal would be needed if it became necessary to have someone living in the house, since she was “very opposed to the idea of residential care”. In connection with this letter, Dr Ashwin was asked whether it did not relate to merely physical rather than mental problems; his reply - which was echoed in some later evidence from Mr Irving - is that the decline in sight led to Miss Loxston being less mentally engaged.

On 17^th October 1998, Dr Ashwin wrote to Mr Rhodes to advise him that Miss Loxston was to have an operation for a cataract on 22^nd October and again this letter is worth quoting at some length: -

“Miss Loxston's condition has deteriorated in several respects in recent months. She is now generally unable to leave the house unassisted and finds difficulty getting around the house. She depends upon friends and her clear Mrs Richardson for most or all of her shopping. Although her sight will hopefully be improved by the operation, she has difficulty in writing cheques and dealing with domestic finance. Her short-term memory is poor and confused.

In the absence of anyone else who may do so, I feel I should ask you to approve some steps to ensure her comfort and security in the present and near future. You will remember that when I wrote on 20^th Dec I decided not to proceed with the refurbishment of her guest room with a view to resident care in the home, for reasons which I set out in that letter. However, the problem with the present situation became clear when the hospital asked me if it were possible to have someone stay overnight on the day of the operation, and her guest room is in such a state of dilapidation that it was not possible to find someone to do so. (I would have been prepared to stay and bring my own camp-bed, but I am already committed.) It is quite possible that, quite apart from the question of long-term nursing care, it might be very useful to have her accommodation in a condition suitable to have an overnight guest for such occasions, temporary illness, etc.

In anticipation of our meeting on Monday 9^th November I would ask you to consider the following steps:

This letter is relevant for a number of reasons. First, this is the first reference in the correspondenceto Mrs Richardson, and as is clear from the passages emphasised above Dr Ashwin was at this time very positive about her. This is important because of what Mrs Richardson said in the course of her oral evidence, to the effect that Dr Ashwin had taken against her, and tried to get rid of her, right at the beginning of her employment. Nothing of this kind was put to Dr Ashwin in the course of his evidence, and all that Mrs Richardson had said in her witness statement was that she had from time to time received notes from Dr Ashwin, some of them containing unpleasant allegations, and that she had a feeling that he had some reason to think that the authorities should be checking upon her.

Dr Ashwin was again asked whether this letter related to Miss Loxston's physical and mental state,and he said that it was both, and indeed the letter does refer to Miss Loxston having difficulty in writing cheques and dealing with domestic financial matters, as well as to her poor short-term memory.

In relation to a further passage in the letter, not quoted above, his evidence was that Miss Loxstontended to speak of matters, such as private financial affairs, about which most people would be reticent, and that he thought that the information as to her financial affairs was sensitive, and that she needed protection in this respect. On a couple of occasions, he had collected papers and sent them to Mr Rhodes, and asked him to arrange for the bank not to send her financial statements, but this had not been entirely successful.

Shortly after this, Marjorie Stroud accompanied Miss Loxston to the local hospital for her cataractoperation, and what happened is recorded in her letter of 22^nd October 1998 to Dr Ashwin: -

“After about half an hour at the hospital Dorothy was examined by a doctor and I was present. He explained that both eyes were in roughly the same condition and the cataract operations could not be expected to make more than a small improvement, the risk of the operation going wrong was one in ten. He was very concerned at Dorothy's constant giggling and fidgeting and expressed grave doubts about a local anaesthetic and suggested that a general one would be more appropriate. Dorothy didn't like the idea and in the end the doctor finally agreed to do the operation, but after consulting with the anaesthetist, he said they would leave her to last (ie of the morning session), so that the anaesthetist could be present throughout. About 11am Dorothy had to be prepared for the operation and duly went in the operating theatre. Only to return after about ten minutes! The anaesthetist said that when they put her on a couch, she was giggling and, there and then, she and the doctor decided that it was too risky to operate by local anaesthetic. After she had got dressed, I asked if they would please arrange for transport home and was told that because we had actually made our own way there, under the rules, we were expected to make our own way home. I was disgusted as this and asked to speak to their transport people. Someone eventually came to see me and I won the day. They arranged for a mini-car and paid or it. We arrived back just before 1pm.

Where do we stand now! Dorothy will need to have the operation by general anaesthetic at City Road. They said it might be in about two weeks' time. . . .”

Three weeks later, Marjorie Stroud tried to ssist Miss Loxston to complete an application for an

Accordingly, Dr Ashwin took over the task of completing the application by - as he put it - trying towrite down her answers or, where they were not coherent, answering for her as objectively and honestly as possible.

Her illnesses and disabilities were described as follows: -

“I am partially sighted and hard of hearing. I walk slowly and with difficulty. I cannot remember things easily. I cannot go out of the house without help. I cannot cope with things like washing clothes, cleaning etc.”

Dr Ashwin again said that he did not regard the disabilities as merely physical. Such tasks required acertain mental effort which she was losing the ability to make. For example, she was no longer washing properly and this was not a physical thing, forgetting to wash was part of her mental state. Similarly, the inability to shop was not merely physical, it was also a matter of organising what was needed. Again, there was a lack of interest in food hygiene resulting in decayed food being in the fridge, and she would say of some bills which she could not cope with “I'm worried about it and it's going round and round in my head”. There was no diagnosis of dementia, or specific clinical condition, of which she was aware, but there was general mental impairment.

This is borne out by other passages on the form: -

“Need to be reminded to wash clothes and change clothes. Need to be reminded to wash or bath . . . need someone to get shopping for me . . . help me to check my fridge and keep it in order, keep the kitchen clean and tidy. Help me to sort out bills, paperwork etc. Keep the home clean and tidy . . . I worry about domestic things like bills and correspondence, I need help and advice to deal with them. I cannot get to the bank and friends bring me cash to pay the milkman etc . . . I cannot remember many recent events or appointments for the future. I find all reading difficult, also writing . . . I need help with shopping, cleaning, my personal washing, routine paperwork, bills etc . . . poor memory and often confused about dates, times and facts. Neglects cleaning and hygiene unless prompted. . . .”

In relation to the above, Dr Ashwin was asked, in effect, how this was compatible with the evidenceof Mr Irving that Miss Loxston was able a few months after this to beat him at scrabble. Dr Ashwin replied that Miss Loxston would respond to personal interaction, but could not deal with inanimate matters such as seeing to a bill.

Dr Ashwin said in his witness statement that Miss Loxston s mental and physical deterioration wassteady and continuous after this. Although there were occasional fluctuations in her condition, she never improved significantly and he never saw what he would call a “lucid interval”. In his oral evidence, he explained that what he meant by this was that there was a deterioration in the degree of rationality which she retained; it declined steadily with no sudden improvement.

On 18^th November, Mr Rhodes wrote to Dr Ashwin, referring to a meeting which they had had with

On 10^th December, Dr Ashwin wrote to Dr McElligott, enclosing a copy of the application for

On 26^th December 1998, Dr Ashwin wrote to Mr Rhodes to report that the cataract operation seemed to have gone well and that the decoration of the back bedroom, bathroom and toilet was the start the following week. Various suggestions were made as to the decorations, maintenance and furniture in the house, including the fitting of a new lock since Miss Loxston had lost both her own keys and had given a number of other people keys but could no longer remember who they were.

There was further correspondence in January and February 1999. On 10^th January Dr Ashwin wrote to Mr Rhodes about the decoration and furnishing of the house, and suggested that Mrs Richardson should be asked to accompany Miss Loxston to Moorfields Hospital because “if she goes on her own she gets confused and panicky and might leave without completing the appointment”. Mr Rhodes replied that Mrs Richardson had agreed to do so. On 13^th January 1999, Mr Rhodes wrote to ask for

On 17^th February, Dr Ashwin wrote to Mr Rhodes to report that most of the work at the house was complete, and that he was applying to place Miss Loxston on the Barnet Council's Lifeline service. This letter contains another passage which is relevant to Dr Ashwin's attitude to Mrs Richardson: -

“Miss Loxston has deteriorated over recent months and is now totally dependent upon Mrs Richardson for her shopping, cleaning, washing, and, to a greater extent, company and advice. This requires virtually daily attendance, and on some days on more than one occasion. Mrs Richardson has also agreed to be named as the first contact on the Lifeline service, which means that she will make herself available by day and night if an emergency arises. (I am named as the second contact.)

In the circumstances, I would recommend that you increase Mrs Richardson's employment to 12 hours per week, which I feel is less than the hours she is already doing. I will undertake, as before, to liaise with Mrs Richardson to ensure that the time is being well spent in Miss Loxston's interests. I now have the District Nurse involved on a regular basis, and she will be a valuable source of expertise and advice.

Taking a longer view, it seems clear that collectively we are gradually moving from a supportive role to more of an in-house caring role. Miss Loxston is now quite unable to cope with the physical demands of living in her home without a great deal of help, and in my view her mental faculties are noticeably declining. She has little short-term memory and can behave in irrational and sometimes dangerous ways (such as recently letting an unknown man into her home at 8pm).

I

am awaiting notice from Barnet Council to undertake an appraisal of her situation.However, in the meantime you might consider whether it would be worth commissioning a professional appraisal of her mental and physical condition so that we fully understand her condition. I assume that the Bank must have encountered such situations in the past.”

Dr Ashwin also wrote in this letter that in his view Miss Loxston's mental faculties were “noticeablydeclining”. She had little short term memory and could behave in irrational and sometimes dangerous ways (such as letting an unknown man into her home at 8pm). He suggested that consideration might be given to commissioning a professional appraisal of her mental and physical condition. Mr Rhodes replied that consideration should be given to registering the power of attorney, and said that he was not qualified to assess the state of Miss Loxston's health. Dr Ashwin responded that he had not meant that he should personally assess it, he suggested that an assessment should be undertaken by Barnet Social Services, although he had so far failed to persuade them to do it despite the understanding that they had a statutory duty to do so. He said that he had not found her GP, Dr Miles, very helpful or informative. He said that he had discussed the situation with Age Concern, and said that they had advised obtaining enduring power of attorney as soon as possible, since this could only be done while she remained in a rational state since otherwise an application to the Court of Protection would have to be made; clearly at this stage Dr Ashwin did not appreciate that the power of attorney had already been obtained. Mr Rhodes wrote to Barnet Social Services requesting an assessment of Miss Loxston's condition, but can tell from the evidence this never happened.

In early April, one of the matters which Miss Loxston put in the wallet file for Dr Ashwin was a letterfrom an accountant at Midland Bank relating to her tax affairs. Dr Ashwin said that Miss Loxston did

In May 1999, Dr Ashwin decided to dispense with the services of the gardener, Mr Holding, becausehe was neglecting the work, and to appoint Mr Irving in his place. Mr Irving had worked for him for 15 years, and had also worked for Miss Loxston before in 1981-2. Mrs Richardson's evidence is that Miss Loxston did not wish to this, and this is borne out by Dr Ashwin's letter to Mr Rhodes on the subject dated 2^nd May 1999 which suggests that she may have initially have resisted a change out of a sense of loyalty to Mr Holding, although she by now welcomed a more reliable arrangement. Mr Irving was therefore employed to do four hours per fortnight, maintaining the garden and carrying out minor maintenance jobs in the house. Mr Irving's evidence is to the effect that Miss Loxston's mental faculties deteriorated noticeably over the period in which he worked for her, and that by January 2003 she had become very withdrawn and difficult to communicate with. I refer to this evidence in more detail later.

In June 1999, Dr Ashwin retired and moved to Norfolk; after that he spent a week in London everymonth, and tried to visit Miss Loxston once or twice in the week, spending an hour or an hour and a half with her and perhaps taking her out to lunch. He wrote to tell Mr Rhodes that he would be visiting Miss Loxston less often in the future on 12^th June 1999, and this letter also refers to the arrangement with Mr Irving working out very well. Miss Loxston liked him, and he was completely honest, trustworthy and reliable. Dr Ashwin suggested he should now spend four hours a week, taking on the tasks which Dr Ashwin had previously undertaken. He was also prepared to be named as a keyholder in the lifeline scheme.

On 5^th July Mr Rhodes confirmed that the new arrangement had been made with Mr Irving, and that there was an enduring power of attorney which he considered it might now be appropriate to register with the court. For that purpose, he asked whether Miss Loxston had any living relatives.

Dr Ashwin replied to Mr Rhodes' question about Miss Loxston's relatives, stating that he could onlyidentify two possible relatives, Kathleen Abbott and Mrs Marion Abbott. Neither Kathleen Abbott nor Miss Loxston had been able to remember the precise nature of their relationship, which “sounded something like a second cousin via Miss Abbott's grandfather” and Mrs Abbott was related by marriage. Dr Ashwin said that he had discussed this with Miss Loxston; by this stage she was articulate and could express sentences, but her logic was confused and the meaning had to be extracted from what she said. He had also looked at her address book to get the addresses for Mr Rhodes.

In October 1999, Mrs Richardson telephoned Mr Rhodes to say that Miss Loxston was becoming moreand more dependent on her and that she was now spending five or six hours a day there. She asked for her wages to be doubled to £120 per week, which Mr Rhodes thought was reasonable. He met Dr

In March 2000, Dr Ashwin and Mrs Richardson agreed that Miss Loxston could live with her for abouta week while alterations were made to the house to put in a downstairs toilet, and Dr Ashwin wrote to Mr Rhodes to suggest that she should be paid extra for this; however, the work was deferred. Later in March, there was a suggestion that Mrs Richardson's husband, who is a builder, should do the work. Dr Ashwin wrote to Mrs Richardson, in polite terms, stating that she could not authorise major changes to her affairs because Mr Rhodes had power of attorney, and sent a copy of the letter to Mr Rhodes, stating that he was anxious about the possibility of Miss Loxston authorising major works on her own. The letter to Mr Rhodes states “otherwise, the relationship with Mrs Richardson is very good so I don't want to do anything which would upset her”. Dr Ashwin was wrong, in the letter to Mrs Richardson, to say that it was not possible for Miss Loxston to authorise work on her own, but the importance of the correspondence is again that Dr Ashwin was not antagonistic to Mrs Richardson. In cross-examination, Dr Ashwin agreed that Mrs Richardson was being very helpful and supportive to Miss Loxston at this time and that they had developed a good relationship or companionship. The evidence suggests that, up to the end of March 2000, Dr Ashwin's view of Mrs Richardson remained largely positive. The letter of 26^th March 2000 also refers to Miss Loxston's “confused mental condition” and suggests that it might be advisable for Dr Ashwin to hold her cheque book and supply her with weekly spending money, because of the risk that she might be persuaded to write a large cheque without Mr Rhodes' knowledge and approval.

On 14^th April, Dr Ashwin wrote to Mr Rhodes to express his concern that Miss Loxston had in the last few months written several large cheques without clearly knowing why. This was triggered by her having written a cheque for £500 in favour of Mrs Richardson and having agreed with her the installation of a gas fire costing several hundred pounds, without notifying Mr Rhodes. He was also concerned that he could no longer visit Miss Loxston as regularly as before and supply her with cash, and that Miss Stroud, who had sometimes done so in his place, had now died. He therefore suggested that this could be done by adding the necessary amount to what was paid for to Mrs Richardson for wages and weekly shopping expenses. He concluded: -

“I would like to agree with these principles with you and Mrs Richardson's presence so that there is no confusion. I will bring Miss Loxston's cheque book to the meeting, and I would like you as the person with power of attorney to decide whether it is prudent to leave it in her possession.”

This led to a meeting on 17^th April, which was the only meeting between Dr Ashwin, Mr Rhodes and Mrs Richardson, as well as Miss Loxston herself were present.

At the meeting, there was discussion about the two cheques which (as Mr Rhodes put it in his note ofthe meeting) “did not carry the prior approval of either himself or Dr Ashwin”. This reflected their view of Miss Loxston's vulnerability at the time, although of course she was entitled to write cheques without their approval. According to Dr Ashwin's witness statement neither Miss Loxston nor Mrs Richardson was able to explain the reason for either cheque, but Mr Rhodes' note of the meeting states that the gas fire was “much needed and worthwhile” and I find that it was agreed at the meeting that this had been a necessary expense. Mrs Richardson claimed that the cheque for £500 was for back pay, but her wages were paid directly by HSBC. Nevertheless, Dr Ashwin and Mr Rhodes do not appear to have taken issue with her over this, but Miss Loxston agreed that her cheque book should be taken from her, and it was also agreed that Miss Loxston's cash float should be topped up by £20 per week, which would be added to the £40 per week paid to Mrs Richardson for other outgoings. There was also discussion about fitting the bathroom downstairs with a shower and toilet, but Miss Loxston was against it for the time being; a later note refers to her being “agitated” about this suggestion.

Both Mr Rhodes and Dr Ashwin's evidence is that, at this meeting, Miss Loxston suddenly said: “Lizwants me to leave her this house”. This was something which she had said to Dr Ashwin on previous occasions, and also to Mrs Parry, and on these occasions Mrs Richardson had laughed the matter off as a joke. Dr Ashwin had said that on this occasion he was shocked by it, because it was blurted out entirely out of context and unprompted. Mr Rhodes responded by telling Mrs Richardson that she had no authority or responsibility in Miss Loxston's legal or financial affairs and should confine her involvement to the duties for which she was employed.

It is clear that both Dr Ashwin and Mr Rhodes regarded Miss Loxston's remark as quite out of place atthe meeting, but it is difficult to see why. Dr Ashwin was a close and disinterested friend. Mr Rhodes

Following the meeting, Dr Ashwin wrote to Mr Rhodes to confirm the altered financial arrangements,sending a copy to Mrs Richardson. The letter contained the following passage: -

“4.

Major items such as furniture or work on the house may only proceed with your prior knowledge and approval.

5.

All long-term decisions in relation to Miss Loxston's finances or legal matters should only be made in private consultation with you. We appreciate Miss Loxston sometimes jokes about her assets or her will, but we feel it is not in her best interests to pay attention to such comments or to raise the matter with her.”

Dr Ashwin said that he put the matter in this way, rather than record what Miss Loxston had actuallysaid, because he was “trying to settle things down” and to convey what had been agreed at the meeting, that financial affairs should only be dealt with by Mr Rhodes. Mrs Richardson had said after the meeting that she would no longer have any involvement in Miss Loxston's financial or legal affairs, and Dr Ashwin had been relieved by this.

In a letter dated 23^rd April 2000, Dr Ashwin referred to his understanding that Mrs Richardson was making a claim for paid leave and suggested a confidential conversation away from Miss Loxston's home to discuss whether Mrs Richardson might be “collecting implied contractual commitments” entitling her to pay sick leave, vacation leave and so on. They met on 2^nd May 2000. Dr Ashwin's notes indicate that he saw it as a plus that Mrs Richardson was liked by Miss Loxston and took care of her but that she was “manipulative? eg will, house, building work . . . tended to isolate D - eg D.

Mrs Parry's witness statement contains the following passage: -

“In my opinion Dorothy's poor state of health left her vulnerable and open to being easily persuaded to do things. Dorothy became very childlike, she would often ask me if I would like her house and I would always say no and that her house had been dealt with in her will.

Dorothy often told me that Mrs Richardson was always asking her to leave her house. I told Dorothy to tell her no and tell her that she already had a will in place which dealt with her house. Dorothy mentioned to Mrs Richardson that I had said this to her and this made

Mrs Richardson so angry that I received an abusive telephone call from her. Mrs

Richardson told me to stay away from Dorothy and to not to visit her anymore. During this telephone conversation Mrs Richardson came across as being very vindictive and vicious. She informed me that she would get the police, social services and her husband to 'sort me out'. Throughout the telephone conversation she was screaming at me and telling me that I was upsetting Dorothy.

After this telephone conversation with Mrs Richardson, I telephoned Dorothy and asked her if I had upset her and she said that I had not. I also asked her if she still wanted me to continue visiting her and she said that of course she did.”

Dr Ashwin's general description in his witness statement of Miss Loxston's state in this period was as follows: -

“By 1999 Dorothy was no longer able to leave the house unassisted. She was only able to ascend the stairs with great difficulty, the only toilet and bathroom being on the first floor. She often used to go upstairs on all fours and descend on her bottom. She was no longer able to bath herself or wash properly, depending upon weekly visits from a district nurse. Mentally, after having been for many years a regular reader of a broadsheet newspaper, Dorothy lost interest in local, national or international affairs. She became unaware of any major news issues of a local or national nature. Dorothy never owned or watched television and never listened to news or current affairs on the radio. Apart from local free newspapers, the only single occasion I saw a newspaper in the house was a tabloid brought in, I believe, by Mrs Richardson. The only book I recollect seeing in her hands for the last two years of her live was Mark Twain's 'A Tramp Abroad' and I believe she occasionally looked at the pictures but never read it in any sustained way. As she no longer did her own shopping or paid her bills, she lost interest in housekeeping affairs.

For the last two to three years of her life Dorothy appeared to be generally incapable of making a telephone call or writing a letter unassisted. It was very unusual for Dorothy to telephone me after 1997/1998 and during the last three years I do not recall her telephoning me at all. I did not telephone Dorothy very often as on one occasion she had been going to answer the telephone and fell and I was concerned that by telephoning her I was putting her at risk.

During the last three or so years of Dorothy's life she became increasingly passive in reactions and showed no strong interests in anything. Up until 1999 she had constantly listened to Radio 3; however from 1999 onwards I rarely found her listening to the radio.

Dorothy became increasingly childlike and eccentric in her behaviour, often behaving in an indiscreet or dangerous manner, for example permitting unknown people to enter her house, even after dark. This led to thefts and exploitation by rogue tradesmen as I have explained above. She often behaved strangely to friends and guests. She obtained a policeman's truncheon and made feigned assaults on visitors, sometimes striking them playfully with the truncheon or with her walking stick. I explained that this could be dangerous and might unintentionally injure someone. Dorothy would often seize the hand of a visitor and refuse to let go, even when they wished to leave. Her grip was very strong and could hurt. This behaviour was often accompanied by loud giggling, and this could transform into hoots of 'stage laughter'. She sometimes exhibited this type of behaviour in moments of stress. On one occasion during my visit, when Mrs Richardson had to leave Dorothy seized Mrs Richardson's hand and refused to release it. We treated this as a joke, but Mrs Richardson could only release her hand by the use of moderate physical force.

Dorothy seemed to wish to revert to her childhood status of the 'baby' of the family, and enjoyed being called by childhood pet name of 'Muffet', which was short for 'Miss Muffet'. She repeatedly behaved in a child-like and irrational manner notwithstanding the repeated cautions of friends. . . .

Having spent more of her life as a spinster living with her late widowed mother and elder brother, I believe Dorothy enjoyed the feeling of having a maternal authority figure in the house again. Dorothy never appeared to understand that Mrs Richardson was paid a salary for her duties, from funds drawn from Dorothy's own assets, but she kept asking how she could repay her. Dorothy said that Mrs Richardson gave her good advice on a range of matters, including financial issues.”

In August 2000, Mrs Richardson contacted Mr Christopher Thomas, the sole principal of Braikenbridge

Mr Thomas described his general practice with elderly clients. He would start by checking if the clientcould see and hear him comfortably, and then ask questions, trying to develop matters slowly so as to find out what he could about the client. He would ask straightforward questions such as full name, address, date of birth and then go on to ask about the family. He liked the client to tell him about the family, as it was a good indication of memory. It was essential to know whether the client knew what a will was and, in his view, creating a will required knowledge of what was being disturbed, and therefore to try to find out the contents of the previous wills. One could then see what changes were required and why and this gave a good indication of the client's level of understanding, especially important with elderly people.

Mr Thomas said that, with a lady of that age, the question of capacity was always uppermost in hismind, and that he would not have completed a will without a doctor at least witnessing it. Equally, he was also always aware of the possibility of undue influence, and therefore would seek to find out the extent of the client's contact with the outside world, in particular which members of the family or friends visited and how often.

In this case, although Mr Thomas spent about an hour to an hour and a half with Miss Loxston, hedid not receive clear instructions which enabled him to proceed to prepare a will for her: the meeting

“ground to a halt on the question of whom she wanted to benefit”. On the question of her understanding to what a will was, Mr Thomas said that he would have asked her, and that the absence of any note as to her response meant that she was unable to tell him. Further, there is a note of her saying that there was a previous will ten or twenty years ago, the whereabouts of which were unknown (in fact she probably still had a copy of the will at the house). As to family, Miss Loxston told Mr Thomas that she only had the one brother, who was deceased, as well as cousins on her mother's side whom she did not see very much. When he raised the question of family and friends, Mrs Richardson's name came up as a possible beneficiary, and Mr Thomas noted it, but matters went no further. The sparse notes made by Mr Thomas support his recollection that, by the end of quite a long meeting, Miss Loxston had not given instructions and did not appear to know what she wanted to do. Mr Thomas said that he formed no view as to her competence to make a will, because matters had not gone far enough for him to need to do so. He did not consider, however, that Miss Loxston had at any stage been unable to understand what he said to her, and said that her faculties seemed to be good; what was striking was her indecision.

In his witness statement, Mr Thomas said of Mrs Richardson that he had no reason to believe thatshe was anything more than the conveyor of messages and information from Miss Loxston (the further contacts between them are dealt with below) and added:

“I have little doubt Mrs Richardson knew and accepted that she could not and should not be involved in what I was being asked to do for Miss Loxston. I do not have any reason to believe that she was seeking to influence Miss Loxston into making decisions about her will and to state in any way whatsoever.”

Asked on what this was based, Mr Thomas explained that he had never felt that Mrs Richardson wasacting outside the normal ambit and that she had behaved quite appropriately. Housekeepers have warning signs all over them, but when he got to the house Mrs Richardson introduced Miss Loxston and behaved properly; he was not sure whether he had to ask her to leave, but either she did so promptly or without being asked. This was not always the case and sometimes clients actually wanted the comfort of a friendly face at the meeting.

On 22^nd August, Mr Thomas wrote to Miss Loxston, to ask if she had decided to whom she wished to leave her estate, and to say that if she wanted to have a further meeting to let him know.

On 24^th August, Dr Ashwin went to see Miss Loxston and on the following day wrote to Mr Rhodes the following terms: -

“I visited Miss Loxston yesterday. She told me she had been visited recently by a member of a local solicitors, Braikenbridge and Edwards of 30 Church Hill Rd, East Barnet EN3 (tel. 020 8449 1171). According to her it was something to do with her legal or financial affairs. She said he had shown her some papers, but she was unable to tell me anything else about the purpose of the visit.

I

have for some time had a suspicion that someone is attempting to influence Miss Loxstonin regard to the disposition of her assets, within or after her lifetime. I feel it is inconceivable that she would have initiated a visit from a solicitor on her own account and unprompted. She is now not able to make competent decisions about her own affairs unaided by an disinterested party and would be vulnerable to persuasion by an interested party with access to her.

Mrs Richardson tells me that she has no knowledge of the visit in question.”

He was asked in the cross-examination whether Miss Loxston might have resented being crossexamined, and therefore had been unwilling and unable to tell her anything about the visit, but he said that this was not so. She had referred to it and if she had wished to keep it confidential she need not have done so. She had said that she did not know what the meeting was about and he had asked her “don't you know anything about it at all” and she had replied “no”. He then asked Mrs Richardson “what's this about Dorothy being visited by solicitors” and Mrs Richardson had replied that she knew nothing of it. Mrs Richardson accepted in her evidence that she had arranged for Mr Thomas to see Miss Loxston.

Mr Thomas wrote to Miss Loxston again on 4^th September, and this produced a telephone call from Mrs Richardson which Mr Thomas noted at the time as “DL want me to deal all matters. Beware Mr Ashwing (sic).” He was unable to explain what all matters meant, and he had no recollection of what had been said about “Mr Ashwing”. There is then a further note to say that Miss Loxston could not see him on that day and a meeting was arranged for 10.30am on 7^th September, but Miss Loxston cancelled it. Mr Thomas wrote her a short note on 20^th September and a more formal letter on 4^th October, but without response.

On 2^nd October 2000, Dr Ashwin wrote to Dr McElligott to ask him to look into the possibility of removing the cataract from Miss Loxston's right eye, stating that he assumed that if this were to be undertaken, she would have to have a general anaesthetic as last time it had not been possible to do it under local anaesthetic; he said that this was a reference to her behaviour in the operating theatre when the attempt had been made to operate under a local anaesthetic. On 31 October 2000 Mr Rhodri Daniel, the consultant ophthalmologist wrote to Mr Rhodes to say that she needed to be seen

On 23^rd October Mr Rhodes, at the instigation of Dr Ashwin, wrote to Braikenbridge & Edwards to say that he was considering applying to the Court of Protection to register the enduring power of attorney, and to ask about the visit which he understood had been made to Miss Loxston: Mr Thomas replied, summarising what had happened.

On 8^th November, Mr Rhodes visited Miss Loxston in order to give her notice of intention to apply to register the enduring power of attorney. He said in his oral evidence (although this is not consistent with the note he made at the time) that she did not really know who he was for a while, but he agreed that this could have been her eyesight. He also said that he explained to her that he looked after her investments, and that she did not seem to understand this in the same way as she had done previously, and did not seem to understand the value of her investments. However, his other evidence suggests that she had little interest in this anyhow. On the question of notice, Mr Rhodes' note reads as follows: -

“On Wednesday 8^th November 2000, I travelled to Miss Loxston's home in the afternoon, as I wished to see her when not accompanied by Mrs Richardson.

Miss Loxston recognised me and met me into the house, although she did not realise I looked after her investments for her until prompted and it was not clear to me that she understood the value of the investments. I told her that we had completed her tax return and that this needed to be signed and asked her whether she would be able to check the figures.

As is Miss Loxston's way, she laughed at that suggestion and I said that I would sign it on behalf of the bank as her Attorney and we agreed that she was not able to deal with the detail of her finances.

I

then asked her if she had sufficient funds, stating that we sent money's to Mrs

Richardson to look after her and she agreed that she had all the money that she needed.

I told Miss Loxston that I was going to register the attorney with the court of protection and hand it to her. Form EP 1.

Miss Loxston stated that she could not read this form as her eye sight was poor. I therefore read it to her. Miss Loxston insisted that she is not senile, but I advised her that this would enable me to take full control of her financial affairs, again she agreed that she was not able to look after these without assistance.”

Mr Rhodes' oral evidence was that, in his view, by this stage Miss Loxston was incapable ofunderstanding or handling her affairs.

The cataract operation hook place on 7^th December, and Mr Rosen reported a “tremendous result”, but in Dr Ashwin's view this proved to be incorrect since Miss Loxston's vision continued to deteriorate.

In January 2001, Mrs Richardson telephoned Mr Rhodes to ask for an increase of £2 per hour,amounting in a 24 hour week to an increase from £120 to £168 per week. Mr Rhodes wrote to Dr Ashwin about this, stating that in his view this was not excessive as Miss Loxston was comfortable with Mrs Richardson and able to remain in her own home, which was her main concern. In his reply of 24^th January, Dr Ashwin counselled caution, since this would leave less leeway for possible future rises. In the course of this letter, he wrote that “as this type of work goes, Miss Loxston is relatively rational, capable, pleasant and undemanding”. In cross-examination he stressed “relatively”; Miss Loxston did not wander about or get lost, and there was no violent or irrational behaviour, as was the

In the meantime, on 12^th January 2001, Mrs Richardson hand delivered to Mr Thomas' office what he describes as a “list of wishes”, handwritten (for the most part reasonably clearly) and signed by Miss Loxston, in the following terms: “This is my will.

According to Dr Ashwin, it is inconceivable that she wrote this, because it is written in a style which isalien to the way in which she spoke or wrote at the time and because she would not have been capable of producing the necessary thought processes at the time. According to Mrs Richardson, to whose evidence I refer in more detail below, Miss Loxston did write it on her own and without any assistance. She was merely asked to deliver it to Mr Thomas.

Having received this, Mr Thomas wrote to Mr Rhodes on 17^th January, and again on 29^th January, to enquire what was happening and on 31 January Mr Rhodes replied that he had sufficient cause to register the power of attorney with the Court of Protection and was currently in correspondence with them. Mrs Richardson then contacted Mr Thomas to ask him to visit Miss Loxston for the purposes of making her will, and he wrote to Mr Rhodes again. Mr Rhodes replied to say that in his opinion Miss Loxston did not have the capacity to deal with her own affairs, and Mr Thomas then took the matter no further.

On 10^th February, Miss Loxston wrote to the Public Trust Office in the following terms: -

“Dear Sirs,

I

would like to revoke Mr Stephen Rhodes or Mr Ashwin.

Mr Rhodes of HSBC Trust Company (UK) Ltd 27/32 Poultry London EC2. I am of a sound

mind.

I will be getting a solicitor to sort all my affairs. Can you please sort this out.”

The Public Trust Office replied on 20^th February, stating that medical evidence was required to show that she was capable of revoking the power of attorney and, if she wished to object on the grounds when the application was premature, that she was presently capable of managing her own affairs. The Public Trust Office suggested that she should seek the advice of solicitors.

On 21 February, Dr Ashwin wrote to Mr Rhodes to express his concern. He said that it was

“inconceivable” that she would have decided to revoke the power of attorney unilaterally, and that he assumed that she had been persuaded or encouraged to do so by Mrs Richardson. He said that Miss Loxston had been unable to make rational and informed decisions about the management of her assets for several years, and that she had always had total trust in Mr Rhodes' stewardship. He said that, whilst Mrs Richardson took very good care of Miss Loxston in a material sense, there were increasing indications that she exerted an influence over her affairs beyond that which was appropriate for an employed care worker.

In the letter, Dr Ashwin referred to an occasion some considerable time previously when a doctor hadconcluded that Miss Loxston was senile. In cross-examination he said that this had happened when Miss Parry was with Miss Loxston when the doctor visited: he had said that she was senile and should be in a residential home, not living on her own. This had probably been some time in 1999 or 2000.

Mr Rhodes confirmed that in his previous years of dealing with Miss Loxston there had been no hint ofdissatisfaction from her and that she had never said that she lacked confidence in him or in HSBC's actions, and that he believed that Miss Loxston may have been prompted by Mrs Richardson to oppose the registration of the power of attorney.

On 23^rd February, Mrs Richardson contacted Dr Miles by telephone and said that Miss Loxston wanted a solicitor to handle her affairs, not the bank; he advised that one should be instructed. It was he who noted “not suffering from any mental illness so far as I am aware”.

On 28^th February; Dr Ashwin visited Miss Loxston, and on the following day he wrote to Mr Rhodes in the following terms: -

“During my last visit to Miss Loxston (28^th Feb) she suggested that she might wish to end your authority in her financial affairs, and this idea was associated with Mrs Richardson who, as she says, gives her good advice. Mr Irving told me today that Miss Loxston had said much the same to him. Miss Loxston would now be quite incapable of managing her own affairs without help, and one can only assume that if the bank ceased to do this she would have to depend upon Mrs Richardson to do so. The objections to this possibility are obvious, and I feel that prompt action is now needed to protect Miss Loxston from a situation which would not be in her best interests and might leave her open to exploitation.

I

feel you should give immediate consideration to terminating Mrs Richardson's

employment and place Miss Loxston's care in the hands of a registered care agency. I have as promised made some enquiries, and the most suitable would be. . . .

It will not be easy to make this switch, and I think it would be best done promptly and at the minimum notice, otherwise I fear that Mrs Richardson might use any interregnum to organise resistance to the proposal. I also feel that you should avoid any implied criticism of Mrs Richardson or her work, put put the reasons for the change in an entirely positive way. I attach a draft letter to indicate the approach which I feel would cause least problems and least distress to Miss Loxston.

It would be helpful if you and I could meet with the representative of the care agency to set it up and also to deal with any queries from Mrs Richardson. I anticipate that Miss Loxston will be upset by this change, but I feel we have to weather this out in her own interests. During the initial period it would be helpful to increase Mr Irving's hours temporarily so that he can spend more time with Miss Loxston and maintain the presence of a familiar face.”

In cross-examination, Dr Ashwin denied that he was opposed in principle to friendship between MissLoxston and Mrs Richardson. He said that he had no problem with this, and was delighted with anyone who helped in a benign way. What concerned him was that Miss Loxston was relying on Mrs Richardson's advice, which was self-interested, and that Mrs Richardson was exerting control over her.

At about this time, Mrs Richardson contacted another solicitor, Clare Davey of Boyes Sutton & Perry,and asked her to see Miss Loxston with a view to deciding her fitness or otherwise to revoke the power of attorney and to give a further power of attorney. On 2^nd March 2001, Clare Davey wrote to Dr McElligott “at Miss Loxston's request through her carer Mrs Richardson” to ask him to assist. She then spoke to Dr Miles, who said that he would be happy to visit and prepare the report. She then wrote to Miss Loxston on 7^th March to say that she would need Mr Rhodes' confirmation that Dr Miles and her own fees would be paid. On 12^th March, Miss Loxston wrote to Mr Rhodes asking him to confirm that payment would be made to Dr Miles and to Boyce Sutton & Perry, and sent a copy of it two days later to Miss Davey.

In the meantime, Dr Ashwin had visited Miss Loxston again, and wrote to Mr Rhodes on 11 March: -

“Since last speaking to you I have visited Miss Loxston and had a further conversation with

Mrs Richardson. This has confirmed my view that it would be advisable to terminate Mrs Richardson's employment as soon as is feasible. Mrs Richardson has adopted an almost proprietorial attitude to Miss Loxston's home, and said literally at one stage of our conversation, 'Nobody is going to get me out of this home, not you, nor Mrs Rhodes, nobody!' This was said in the context of her professed desire to care for Miss Loxston, but I find her attitude quite disturbing, and if she has not already succeeded in secretly getting Miss Loxston to bequeath her the property, this must be her intention . . .

I

feel it would be advisable to base your reasons for terminating Mrs Richardson'semployment entirely in positive terms and avoid raising criticisms. The positive reasons are:

Dr Ashwin was sufficiently alarmed about the situation to write to Miss Loxston's family (Kathleen,Marion and Ronald Abbott) to advise them of the situation, without telling Miss Loxston that he was doing so, and also to write a long letter to the Public Trust Office; this letter gives a clear picture of

Dr Ashwin sent a copy of this letter to the family, and Mr Ronald Abbott contacted Mr Rhodes to saythat he supported the bank's application for the power of attorney.

On 21 March, Dr Ashwin visited Miss Loxston, and wrote out a letter to Boyce Sutton & Perrywithdrawing her opposition to the registration of the power of attorney. He went through her long association with HSBC with her, and persuaded her that it was in her best interests to sign it, which she did. She was not able to read it, but he read it out to her. Mrs Richardson was not present, but Dr Ashwin then had a separate conversation with Mrs Richardson in which she said that Miss Loxston was not being properly looked after and that she needed to employ a solicitor. Dr Ashwin said that he did not agree, and this led to an argument in which he said that it was not for her to give advice about legal affairs.

Despite her letter, Miss Loxston telephoned Miss Davey on 26^th March to ask whether she was still acting for her, and had no recollection of the letter of 21 March. Miss Davey reported this to Mr Rhodes, stating that Mrs Richardson had been with Miss Loxston when she made the call, and confirmed that she was no longer acting.

On 26^th March, Dr Ashwin met Mr Rhodes to discuss the situation, and again pressed him to consider terminating Mrs Richardson's employment. However, Mr Rhodes did not do this because he felt that Miss Loxston could have reappointed her. It was suggested to Dr Ashwin in cross-examination that he had by this stage irrevocably turned against Mrs Richardson and was prepared to believe the worst. His reply was that, in the light of experience, he had come to that conclusion.

On 26^th April, Miss Loxston wrote to HSBC at Whetstone: -

“I would like you to help me get a solicitor so that I can make a new will. I haven't got a cheque book to pay for one myself. Can you come and see me.”

This was referred to Mr Rhodes, who replied saying that he would contact her further when he hadheard from the Court of Protection. The court wrote on 14^th June to say that, having heard from Miss Loxston's solicitors that they were no longer instructed, the power of attorney would be registered in 7 days time, and it was sent on 22^nd June.

On 27^th June 2001, Mr Rhodes wrote to Dr Ashwin to confirm that he had received the registered power of attorney and said that he had written to Mrs Richardson. In the letter to Mrs Richardson, he stressed that HSBC was now responsible for ratifying all items of expenditure and keeping the appropriate accounts, and invited her to contact him if additional expenditure was needed. He said that Miss Loxston would be unable to enter into any form of legal agreement, but that if one were necessary, the Bank would deal with it on her behalf.

Mr Rhodes also wrote to Mr Thomas, to say that Miss Loxston had an existing will and that the Bankwould therefore not be seeking to make a statutory will: he did not at this stage seek to ascertain Miss Loxston's wishes, although he did make some attempt to do so some months later as will be seen. Mr Rhodes wrongly believed that no further testamentary instrument could be executed by or on behalf of Miss Loxston without the consent of the Court of Protection. 108. Mr Rhodes' letter of 27^th June to Dr Ashwin again referred to the issue of downstairs toilet facilities,

On the previous day, 6^th July 2001, Dr Richard Abbott had visited Miss Loxston. This was his first visit since 1996, as he had been living in the United States since then. In his witness statement (which mirrors an email wrote at the time to Mr Ronald Abbott), he describes the visit as follows: -

“I visited Dorothy on 6^th July 2001; she seemed fine although a little slower than the last time I had seen her. We talked about the family, including her visits over the years with my grandmother and my mother's cooking. I played the piano for her, as she was no longer able to play due to arthritis, which was obviously very frustrating for her.

Throughout this visit Mrs Elizabeth Richardson, Dorothy's home help was there. I had been made aware that Dorothy had a home help/carer but cannot recall whether I had been told about her and by Dorothy herself or my mother. Dorothy's house seemed to be in order and was clean and tidy. Mrs Richardson did try to engage me in a conversation about Dorothy's financial affairs and seemed very irritated that the Bank (HSBC) and her friend, Dr Clive Ashwin, were so involved in them. I remember that on returning home after this visit I expressed to my wife my concern that Mrs Richardson seemed to have too much interest in Dorothy's financial affairs for someone in a caring role.

Mrs Richardson, also during this visit gave me her opinions of the family saying that the family did not care about Dorothy and that she thought I should stay for at least a few days. This surprised me as I had visited Dorothy several times previously and me staying there had never been discussed or been an expectation. Mrs Richardson also stated that she felt the family should be more involved with Dorothy. I told her that I had visited when I could when I lived in the area and that I had been the only member of the family who had ever lived in the area. I also explained that many members of the family were now elderly and unable to travel as far or as easily.”

This evidence, although led on behalf of the Claimants, supports Mrs Richardson's case in tworespects. First, it does not suggest that there had been a marked decline in Miss Loxston's mental faculties over the previous five years. Secondly, the fact that Mrs Richardson was seeking to get Miss Loxston's family to become more involved in her affairs, however inappropriate this may have seemed to Dr Abbott, does not accord with the Claimants' case that Mrs Richardson was, by this stage, seeking by unscrupulous means to induce Miss Loxston into leaving her a substantial part of her fortune. If this had been so, involving the family would hardly have been the best way to achieve her ends.

Nothing of note occurred until early 2002, when the necessary work was carried out to provide toiletand washing facilities downstairs. On 21 January 2002, Dr Ashwin reported to Mr Ronald Abbott:

“I thought I would write to bring you up to date on Dorothy's situation. I feel that all is going well. As you know, HSBC bank in the person of Mr S F Rhodes, were awarded power of attorney in her affairs last year and it should not now be possible for anyone to meddle in her legal or financial affairs.

We have pushed ahead with the plan to install a toilet and shower room in her rear reception room and most of the work was completed when I visited her today. Dorothy's great desire is to remain in her home for as long as possible. When she is no longer able to climb the stairs we will convert the rear room into her bedroom adjacent to the new toilet and shower room.

Her carer keeps Dorothy and the house clean and tidy, and provides her with a good diet. Mr Irving looks after the garden and does any necessary jobs in the house.

I feel that Dorothy is contended and cheerful. I should be very grateful if you would let her other relatives know that all seems to be well, and thank them for their support in the application for power of attorney. You might also mention that she takes special pleasure in receiving a card or a short letter.”

On 2^nd February, Dr Ashwin wrote to Mr Rhodes to say that the work was satisfactorily completed and suggested the replacement of the french windows in the rear reception room downstairs, with a

In March, Mrs Richardson contacted Mr Thomas again, and he wrote to HSBC on 11 March in thefollowing terms: -

“We are again being told by Mrs Richardson, on behalf of Miss Loxston, that Miss Loxston wishes to make amendments to her will. We cannot in view of your appointment but would you please confirm that you will make arrangements to visit her. We are very concerned that a 97 year old lady, who wishes to amend her will, should be able to do so ... you will doubtless treat the matter as one of urgency.”

Mr Rhodes did treat it as a matter of urgency and visited Miss Loxston on 13^th March, using as a pretext a desire to inspect the recently completely work. He raised the subject of her will, and his note of the visit reads as follows: -

“. . . she stated that 'Mrs Richardson wants me to leave her this house'. When I asked her if this is what she wanted to do or for the Will to remain in favour of her relatives in Yorkshire, she made no reply to the question. Under the circumstances, I did not feel that there was sufficient evidence to suggest that there was a real wish to make these changes but that this had been instigated by prompting from Mrs Richardson.”

In cross-examination, he said that he raised the question of changes to the will directly and thatwhen he asked the question, is that what you want, Miss Loxston did not answer in any way. She did not say that that was what she wanted; if she had said that she wanted to leave the house to Mrs Richardson, he would have referred the matter to his technical department for advice. As it was, he took it no further.

On 18^th March, Mr Rhodes wrote to Mrs Richardson referring to Mr Thomas' letter and advising her:

“. . . and as the power of attorney has been registered with the court of protection Miss Loxston is unable to change her Will unless I receive direction from the court that this is permissible. The court would obviously wish to know the circumstances of the case and may require medical evidence confirming that she has capacity to effect such changes. Having visited Miss Loxston on Wednesday, she did not convince me that this was the case and unless there is strong evidence I do not propose taking this up with the court.”

As previously mentioned, Mr Rhodes was wrong in his belief that the direction of the Court of Protection was required in order to effect a will. Nevertheless, this is what he told Mrs Richardson at the time, and he sent a copy of the letter to Dr Ashwin.

On 14^th May, Dr Ashwin wrote to Mr Rhodes stating that Mrs Richardson had become very hostile to

Dr Ashwin suggested that steps should be taken to employ another carer, perhaps splitting dutieswith Mrs Richardson. Although Mr Rhodes replied to the effect that he would look into this, nothing seems to have come of this suggestion. On 15^th June 2002, Dr Ashwin wrote to Mr Rhodes again about a fall which Miss Loxston has sustained, which had resulted in her being unable to get up until Mrs Richardson visited her later in the evening and in her having to sleep in the rear downstairs room for a day or two. Further, on the day on which Dr Ashwin called, Mrs Richardson reported to him that Miss Loxston had not made herself any breakfast or a cup of tea and had had nothing to eat or drink that morning. Dr Ashwin suggested increasing Mrs Richardson's duties for additional pay, as well as agency care.

On 17^th September, Miss Loxston wrote to Dr Miles: -

“I would like a letter from you so that I can make a new will. I hope you will call to see me. I will pay you for the letter.”

Dr Miles replied that no letter from him was required in order to make a new will, and advised her to see a solicitor.

On 24^th October, Miss Loxston was visited by Mr David Cowan of Barnet Social Services, at Dr Ashwin's request, and Dr Ashwin subsequently spoke to him. Dr Ashwin then wrote to Mr Rhodes on 24^th November as follows: -

“My impression of Mr Cowan's visit is that he felt that everything which can reasonably be done is being done to make Miss Loxston safe and comfortable in her home. Because of Miss Loxston's personal financial resources he did not feel that there would be any likelihood of additional cost-free resources from the Council.

Mr Cowan also remarked that, somewhat to his surprise, Mrs Richardson raised in Miss

Loxston's presence the suggestion that Miss Loxston could change her will in Mrs

Richardson's favour, leaving her the house. That Mr Cowan should have felt this exchange worthy of remark indicates that he felt it was somewhat unusual and inappropriate.

It suggests that Mrs Richardson has not abandoned the hope of persuading Miss Loxston to change her will in her favour. If this arises at some future date I feel I should put on record now the fact that it does so, not from any spontaneous desire on the part of Miss Loxston, but from persistent suggestion and persuasion from Mrs Richardson.”

In cross-examination, Dr Ashwin said that what Mr Cowan had said to him was that Mrs Richardsontold him that Miss Loxston would like to change her will, was asking how to go about it. It was suggested to him that this differed from the account in the letter, but I agree with Dr Ashwin that there is inconsistency. Dr Ashwin said that he was not especially concerned, because he wrongly thought that this was not a problem (presumably in view of what he understood to be the effect of the registration of the power of attorney). Despite Mrs Richardson's denial, I am sure that Dr Ashwin's letter records the substance of what she said to Mr Cowan.

In response to further questions in cross-examination connected with this letter, Dr Ashwin said thatif Miss Loxston had ever said that she wanted to leave Mrs Richardson something in her will, he would have been quite happy about it, and would have told Mr Rhodes and left it to HSBC's legal

However, it was his view that she was not capable of making a complete will, because her memorywas so impaired that she could not understand the totality of it. She could convey an intention to leave something to one person, but she had not the slighted idea of how much she was worth. Similarly, she could recollect people, but her memory was so fragmented that it was largely aroused by dialogue with someone. Her spontaneous recollection of facts was by now very difficult. Equally, whilst it was difficult to separate capacity from influence, her diminished capacity made her more vulnerable to influence. The first part of this, relating to Miss Loxston's powers of recollection, is an important piece of evidence, and I accept it.

At some time during the summer of 2002, Dr Abbott went to see Miss Loxston again, during a visit tothe UK, but he appears to have had no significant recollection of what happened on this occasion.

On 17^th September, Miss Loxston wrote to Dr Miles to ask for a letter “so that I can make a new will” and offered to pay for it. Dr Miles replied that she did not need a letter and advised her to instruct a solicitor.

As already mentioned, Mr Irving worked for Miss Loxston as a gardener and handyman from May1999 onwards. He went to the house twice a week, and would usually have a cup of tea with Miss Loxston. He clearly liked her and was kind to her. He was an objective and reliable witness.

When he first went to see her (he was referring to 1999, not to 1981-2), he judged her as quitecapable mentally. She was able to engage in conversations. For example, when Mr Irving cleaned her furniture, she would find photographs from her hiking days, and enjoyed talking about them. She had magazine articles going back to the 1950s, and brought them out and talked about them, for example, the conquest of Mount Everest in 1953. She beat him at Scrabble in 1999.

However, in the last couple of years of her life, she deteriorated. He life seemed to become moreconfined to the chair in the front room. She no longer played Scrabble and as her walking became worse, she did not go into the garden so much. She slept a great deal, and she used to have a book on her lap most of the time, either a picture book of Yorkshire, or the same passage in the Mark Twain book. She no longer instigated conversations. Mr Irving would think of subjects to talk about, and they would tend to have the same conversations over and over again from one week to the next, for example, her french horn playing or the Mark Twain book, or he would suggest looking at a photograph album from the 1920s, which he thought would be of interest to her.

In his witness statement, Mr Irving said that he had a good working relationship with Mrs Richardsonas well as with Miss Loxston, and that they got on well together. He never had any concerns about their relationship. In cross-examination, he agreed that they were very fond of each other and that he never saw anything to suggest otherwise.

On the subject of Miss Loxston's will, Mr Irving said the following in his witness statement: -

“On having seen a copy of Dorothy's wills, after her death, I am surprised that the will dated 30^th January 2003 did not include some of her musical friends, for example, Sue Dingle, Clair Tozer and Clive Ashwin, as she was very fond of them and they had been mentioned in her previous wills. As I have previously mentioned Dorothy Parry was a frequent visitor. I remember meeting Sue Dingle on three or four occasions whilst she was visiting Dorothy but she told me that Mrs Richardson made her feel unwelcome. Dorothy would receive cards from Clair Tozer which she really enjoyed receiving. Dorothy kept many cards from family and friends and she would always enjoy having these read to her. On her fireplace Dorothy had two photographs of two children who I believe were the children of Richard Abbott. Dorothy of often spoke of her family and her links to Ripon and the family furniture business.”

Mr Irving also recalled an occasion some time before January 2003, when Miss Loxston mentionedthat Mrs Richardson wanted her to leave the house to her. Mr Irving replied that he would like the garden. Mr Irving said that her remark “came out of nothing at all”.

He also recalled a number of incidents occurring in the last couple of years of Miss Loxston's life: -

Mrs Richardson relies on the witness statement of Carol Ribeiro, who is employed by the BarnetPrimary Care Trust as a bath care assistant and who provided bathing services to Miss Loxston from

She also stated that she often saw Miss Loxston towards the end of the morning and that she could remember her taking the meal which Mrs Richardson had prepared from the oven and then sitting down to eat it. She also remembered meeting Dr Ashwin on one occasion, and that Miss Loxston talked about him having moved to Norfolk, and therefore not seeing her so often. 135. On the subject of Mrs Richardson, her evidence was as follows: -

“I know that Miss Loxston had high regard for Mrs Richardson. In fact I would say that she developed quite a deep affection for her. I know that Mrs Richardson was doing all sorts of things to help Miss Loxston, including going and buying her clothes and assisting her in many other ways. I remember Miss Loxston saying to me about Mrs Richardson that she was 'very good to me' and I specifically remember her saying that 'she's marvellous'.” The January 2003 Will

Mr David Lesser is an experienced solicitor, who practiced from 1960 to 1997 as Dr Lesser & Co. Hehad a general practice, and he had extensive experience of dealing with wills and estates including advising on tax matters relating to estates. After his retirement, he and his wife, Naomi, who has significant business and administrative skills, decided to set up a will service called the Regent Wills Service, advertising in local newspapers. For the modest fee of £55, they provide advice on the making of a will, draft it and, if necessary, assist at the time of its execution. On average, they deal with some 500 wills each year.

Mr and Mrs Lesser were straightforward and careful witnesses, and I have no hesitation in acceptingtheir evidence as both truthful and accurate. In particular, it was suggested to Mr Lesser that his evidence that Miss Loxston said that she was leaving the house to Mrs Richardson because of her kindness to him (which was not referred to in his handwritten notes made at the time) was made up after the event. He rejected this suggestion, and so do I.

On 7^th January 2003, Mrs Richardson telephoned Mr Lesser and said that she helped to look after a very elderly lady, Miss Loxston, who wanted to make a will. Mr Lesser understood from what Mrs Richardson said that she was a carer and, although not explicitly told that she was paid, would have assumed this if he had thought about it.

Neither Mrs Richardson nor, subsequently, Miss Loxston told Mr Lesser that Miss Loxston had given apower of attorney to Mr Rhodes, or that it had been registered. Mr Lesser never become aware of Mr Rhodes' existence.

On 17^th January, Mr Lesser went to Miss Loxston's house. The front door was opened by Mrs

Mr Lesser described Miss Loxston as frail, and said that because of her age he would have spokenmore loudly and slowly than usual. However, she had no difficulty in engaging in conversation with him. He followed his usual practice of having a very general chat in order to put the client at her ease and established a rapport with her. She was fully alert and responsive throughout the meeting, and he was quite satisfied that she heard and understood what he said to her.

Mr Lesser then followed his usual practice of making sure that the client was aware of the nature of awill. He explained the need to appoint executors, stating what their role would be when the time came. He explained about specific legacies and a disposition of the balance of the estate. Still following his usual practice, he made manuscript notes of her instructions, recording the basic information given to him.

Mr Lesser explained that, in order to be sure that Miss Loxston knew what a will was, he asked her“do you know why I am here?”. He made no note of her answer; his practice would have been to make a note only if the client lacked awareness. Miss Loxston did understand that he was there to help her make a will.

Then Mr Lesser asked her “can you tell me what you want to do?”. Miss Loxston's response wassimple and clear and had three parts to it, all of which came out “in one go”. First, she wished to leave the house and its contents to Mrs Richardson, secondly, she wished to leave the piano to the church and thirdly, the rest was to go to her family in Yorkshire. She was “very positive” about the first two matters - she wanted these - but there was a subtle change of emphasis as to the third, the rest was just to go to the family. At some point, she also said that she wanted Mrs Richardson to be her executor.

Mr Lesser was quite satisfied that Miss Loxston knew exactly what she was asking him to do for her,but he felt the need to consider the possibility of undue influence. He addressed this in two ways.

First, either he asked her why she wanted to leave the house to Mrs Richardson, or possibly she toldhim without being asked. She said that she wished to do this because of the kindness which Mrs Richardson had shown her for a considerable length of time, whereas she had not had a great deal of contact with her family. Without being sure of the exact words, Mr Lesser was certain that the contrast between Mrs Richardson's kindness and the lack of contact with the family came in one sentence.

Secondly - and Mr Lesser again described this as “standard”, he said something to the effect that “it'swhat you want that counts, not what I want, nor what Mrs Richardson wants, is this what you want?” to which Miss Loxston replied that it was. He then asked her confirm that nobody had put any pressure on her, or tried to persuade her what to do, and Miss Loxston confirmed this. Mr Lesser considered that, if this had not been so, there would at least have been some noticeable hesitation in the reply, but there was not.

Mr Lesser did not seek to ascertain whether there was a previous will. He said that he would havedone this if the instructions had been to change something in the previous will, but that this was not necessary where he had precisely instructions as to what she wished to do. On this, his view differed from that of Mr Thomas.

In his witness statement, Mr Lesser said that Miss Loxston was “a little vague about which membersof her family she wished to benefit”, and that she “did not seem particularly concerned that any one or more individuals should be benefit”. In his oral evidence, he said that his impression was that he did not favour or disfavour any particular member of the family, was not particularly concerned which members of the family benefited and would have been “quite happy if I'd just put, everything else to her family”.

However, Mr Lesser explained to her that he could not leave her property to “the family” but had togive specific names. She then “put on her thinking cap” and came up with the two names Marion

Mr Lesser asked her whether there was anybody else she wished to benefit by, for example, a gift ofa picture which he pointed to on the wall, and Miss Loxston said not. Mr Lesser did not ascertain whether she had any friends other than Mrs Richardson, and did not ask her whether she wished to make any charitable bequests.

Mr Lesser said in the course of his oral evidence that, save to the limited extent indicated, he neverbecame aware of the identity of the members of her family, or the extent of her property. He was then asked whether he was able to say whether Miss Loxston herself was aware of the extent of her property, and he said that he was not.

At the end of the meeting, Mr Lesser obtained from Mrs Richardson the name and address of MissLoxston's doctor, Dr Miles. He did not tell Miss Loxston that he would be contacting him, but he did, referring to his visit to take instructions for the drawing of her will and adding: -

“Miss Loxston is, of course, an elderly lady and I found her to be frail and rather vague but she was able to convey her testamentary wishes to me and I considered that she was fully aware of the nature and effect of those wishes.

However, I shall be grateful if, as her medical practitioner, you could kindly confirm (if such be the case) that you consider her to be mentally competent to make a will.”

To this, Dr Miles replied that he had last seen her in June 2002 and that he therefore felt unable tocomment on her current mental competence to make a will. He was about to retire, but Dr McElligott or his replacement would be willing to examine Miss Loxston at a charge, set by the BMA, of £108 per 45 minutes. Mr Lesser said that he did not consider that he was justified in imposing this expense on Miss Loxston. It was suggested to him that the very fact that he wrote to Dr Miles meant that he was not satisfied as to her mental capacity to make a will, but I accept his evidence that this was not so: he was satisfied that she was mentally capable of giving instructions for her will, and decided that this further precaution was unnecessary.

A further appointment was then made for 30^th January, and on this occasion Mrs Lesser so that there would be two witnesses. Mrs Richardson again showed them in and then left the room, and Mr Lesser introduced his wife. Miss Loxston knew who they were, and why they had come to see her.

Mr Lesser then read the will to her, clause by clause, summarising what was contained in each clause,making it clear that it was to be a will setting out her wishes alone and that if there was anything she wished to change, this would be no problem. Mr Lesser said that he was again satisfied that Miss Loxston was alert and aware of what she was doing, and that she fully understood the contents of the will. She signed it and he and Mrs Lesser witnessed it. The meeting lasted no more than half an hour.

Mrs Lesser's evidence confirms that of her husband, and she also remembers two comments made byMiss Loxston. When Mr Lesser referred to the provision leaving the piano to the local church, she gestured and pointed towards the piano, saying words to the effect “Yes I want to leave that piano to the church”. This was a logical comment to make, since there was also an upright piano in the house. When her husband was explaining the gift of the residue of the estate to members of her family, she commented that she could not remember exactly where they lived, because she did not hear from them too often and had not seen them recently.

Mrs Richardson is 63 years of age. She is divorced, but remains on good terms with her husband, whowas present for part of the hearing. She has three children, two grandchildren and one greatgrandchild. She has done various kinds of work in her life, including work as a hairdresser and clerical work, but most often domestic work. For a time, she was employed by the local authority as a home help for Barnet Social Services, including caring for the elderly. She said that she had no training for this, she simply got on and did the job. What was essential was to be nice to the old people, and to cook and clean properly for them.

As already stated, whilst she was originally employed by Miss Loxston as a cleaner once a week, herwork expanded considerably over the years. When she was first employed, the house was in a shocking state and it took her about three months to get it up to standard. After a time, Miss Loxston asked her to do the shopping, and on occasions they went to the shops together. In addition, she started to do Miss Loxston's washing and cooked for her. In time, in addition to cleaning, she did all Miss Loxston's washing, cooked and shopped for her, washed and rolled her hair and visited in the evenings in order to help her go to bed. Miss Loxston used to call her sometimes when she needed company, and Mrs Richardson used to take her out in the car, and generally look after her. Towards the end of her life, she became physically much weaker, and Mrs Richardson carried out what she referred to as “wider duties of physical care and housekeeping” than previously. Miss Loxston needed a lot of physical care and attention. All this is consistent with other evidence, and I do not doubt that it is true or that Mrs Richardson performed extra tasks for Miss Loxston, outside her regular hours of 9am to 1pm and for which she was not paid, out of friendship.

Mrs Richardson's evidence is consistent with that of other witnesses, and the contemporarycorrespondence, so far as Miss Loxston's increasing physical frailty is concerned. However there were some things which she did to the end of her life, including making her own bed, getting her own breakfast (albeit towards the end of her life no longer a cooked breakfast), making herself a cup of tea and occasionally, with the aid of her zimmer frame, going into the garden. Other things - such as playing the piano and going out to the post box - fell by the wayside in the last few months or year of her life.

As regards Miss Loxston's mental capacity, Mrs Richardson described her as a “a very determinedstrong lady until the end of her life” and said that she remained mentally capable: she knew and understood everything, and was able to convey her wishes to Mrs Richardson both as regards day to day matters such as shopping, and as regards more important matters such as the making of a new will. Mrs Richardson's evidence was that she was always able to converse easily with Miss Loxston, who liked to be in the kitchen while she got on with her work. She described her discussions with Miss Loxston as “not very high conversation”, just small mundane things and talk about her friends or Mrs Richardson's own children or current activities. She also remained able to sit and talk with other friends such as Sue Dingle and Clare Tozer. She listened to the radio and read, amongst other things, a local newspaper which Mrs Richardson brought into the house.

Mrs Richardson gave some rather surprising evidence, which was not in her witness statement, to theeffect that - when she first started to work for Miss Loxston Dr Ashwin did not want her there. It was obvious from the word go that he did not want her. First, Mrs Parry said to her “Clive has gone mad that you've started” and then Dr Ashwin himself pinned a big note up in the house stating “your work here is terminated, Mrs Richardson, your services are not required here”. Miss Loxston then said to her that Dr Ashwin was only a musical friend, and that she liked her in the house. In the following week, Dr Ashwin said “oh you're still here”, to which she replied that Miss Loxston wanted her, that it was not for him to sack her. After that, according to Mrs Richardson, Dr Ashwin tended to avoid her.

This was not in Mrs Richardson's witness statement and it was not put to Dr Ashwin. It is inconsistentwith earlier evidence in which Mrs Richardson had said as regards a later period that Dr Ashwin became wary of her and “no longer friendly”. It is inconsistent with everything Dr Ashwin wrote up to April 2000. I am sure that this part of Mrs Richardson's evidence was made up on the spur of the moment in an effort to discredit Dr Ashwin's testimony, and I do not believe it.

What Mrs Richardson did say in her witness statement was that Dr Ashwin had from time to time senther notes, some of which contained “unpleasant allegations”, of which Miss Loxston was aware: she said that she did not want Dr Ashwin interfering in things, and particularly not in their relationship. In her oral evidence, she said that there were “a whole load” of such notes, at one point, she said hundreds and in another “a good 20 or 30”. They were typed, but the typing was bad and sometimes Dr Ashwin did not finish sentences. She was unable to specify any particularly unpleasant note. She said, for example, that there might be a note saying “I saw what you gave Miss Loxston to eat, did you give her such and such a wine with it”? Another note was about the sewing of Miss Loxston's clothes. Mrs Richardson had said to Dr Ashwin “you keep sending me these notes, you stop it or I might just take you to trouble over them”. Whilst I accept that Dr Ashwin may have written occasional notes to her which she felt implied some criticism of her care of Miss Loxston, I consider that this part of Mrs Richardson's evidence for the most part either invented or very greatly exaggerated.

I find that Dr Ashwin's view until April 2000 or shortly before that was that Mrs Richardson wasproviding very welcome good care for Miss Loxston, and that he was glad that they got on so well together. This really only changed as a result of the events leading up to and at the meeting of 17^th April 2000.

As to the first if the three main topics of discussion at the meeting, the gas fire, Mrs Richardson'sevidence was that she had written the cheque in favour of British Gas for this, this had been agreed with Miss Loxston, who knew what she was doing. Furthermore, Miss Loxston had explained the reason for the gas fire: “he (Dr Ashwin) keeps telling everyone she didn't know what she was doing she knew exactly what she was doing”. As to the cheque for £500 in her favour, this was for extra hours worked, and had been agreed with Miss Loxston.

On the cheque for the gas fire, in substance I accept Mrs Richardson's evidence. Either Mrs

As regards “Liz wants me to leave her the house”, Mrs Richardson's evidence was that Miss Loxstonnever said this. What she said, both at the meeting and previously, was that she wanted to leave Mrs Richardson the house, to which Mrs Richardson always replied “don't' be so silly” or words to that effect. I do not accept her evidence on this point. It is clear from the contemporary letters, as well as from the evidence of Dr Ashwin, Mr Rhodes and Mr Irving, that it was “Liz wants me to leave her this house”.

Mrs Richardson's evidence was that Miss Loxston was upset that her cheque book was taken away atthis meeting, which meant that she could no longer write small cheques in favour of charity, as she had done in the past. I accept her evidence on this point.

Mrs Richardson also said that Dr Ashwin had wanted to sack her at the meeting but Miss Loxstonwould not have it. I do not think that this took place at this meeting, but it is clear that Dr Ashwin later wished to terminate Mrs Richardson's employment, and I accept her evidence that Miss Loxston was at no time prepared to agree with this.

I also accept her evidence that she did not intervene in an untoward way in the extensive andcomplex discussions about various possible alterations to the house to accommodate Miss Loxston's increasing frailty. I think that the principal obstacle was Miss Loxston herself, who was reluctant to agree to alterations to the familiar layout of the house, which were likely to (and did) make it more difficult for her to access familiar papers or other possessions. I am sure that Mrs Richardson expressed her views, but I do not think that she acted in an untoward way either in arranging for a quotation from her husband or otherwise. Nor do I think that the suggestion put to her in crossexamination, that at one stage she promoted a plan to extend the house because this would add to its value and she hoped to inherit it, was justified.

Mrs Richardson denied that she was antagonistic to Miss Loxston's friends, or that she sought toisolate them. She gave evidence of two incidents involving Marjorie Stroud. The first arose because Miss Loxston wanted someone to sort her money out, and wanted to make a will, and she (Mrs

So far as Dorothy Parry is concerned, Mrs Richardson's evidence is that Dr Ashwin had told Mrs Parrythat Miss Loxston wanted Mrs Richardson to have the house, and that Mrs Parry gone to see Miss Loxston “to have a go at her” and had upset her; she had remonstrated with her. On another occasion, about six months or a year before Miss Loxston died, Mrs Parry brought the subject up again and Mrs Richardson said that it was none of her business: Mrs Parry said “I will make it my business”.

Mrs Richardson said was that her efforts to find a solicitor for Miss Loxston arose from an incidentabout four years after she started working for Miss Loxston (which on her timing would be in about 2000), when Miss Loxston opened a package and commented that it was “only shares”. She then showed Mrs Richardson the paperwork and it was obvious that she had shares which were worth a lot of money. She said to Miss Loxston “you're loaded”. On the following day, she found Miss Loxston with a box of papers which she had apparently keeping under her wardrobe. These were financial records, and she was very keen that Mrs Richardson should see them. She told Mrs Richardson that she had been keeping them out of the way so that Dr Ashwin did not see them. Then on another day, Miss Loxston was looking for her will, which she could not find, because she was thinking of altering it. Mrs Richardson suggested that the Bank might be able to provide her with a copy. From then on, Miss Loxston became increasingly concerned about what was to happen her shares, which she saw as family assets and which she wanted her relatives in Ripon to inherit. She became “desperately anxious” to make a new will, and all Mrs Richardson's actions in contacting the two firms of solicitors were at Miss Loxston's insistence after she had tried to get Mr Rhodes to assist her but he had not done so. Miss Loxston did not believe that they were looking after her affairs properly. Mrs Richardson had done nothing on her own initiative, had never seen the old will and had had no hand in writing the instructions of 10^th January 2001; Miss Loxston had given her a sealed envelope and asked her to take it to Braikenbridge & Edwards for her. Nor had she caused Miss Loxston to telephone Mr Thomas in March 2001. She denied bringing up the question of a will during Mr Cowan's visit, or having anything to do with Miss Loxston's letter to Dr Miles of 17^th September 2002. Although Miss Loxston had, from to time, expressed the intention to leave the house to her, it was not until Guy Fawkes Night of 2002 that she said that she would definitely do this.

Mrs Richardson said that Miss Loxston was “obsessed” with the new will, and insisted on hercontacting solicitors and taking the other steps she took to this end. Dr Ashwin had been angry when he found out, and had a go both at Miss Loxston and Mrs Richardson. Mrs Richardson had not wanted to get involved further, and had told Dr Ashwin so, but Miss Loxston had insisted: when Dr Ashwin found one of the letters from Ms Davey, he was furious with both her and Miss Loxston. He shouted at her “how dare you get in touch with more solicitors” and he screamed at Miss Loxston as well. Miss Loxston sat back looking up and away from him without reacting, but later went on insisting that Mrs Richardson took further steps.

As regards the visit of Dr Abbott in July 2001, Mrs Richardson's evidence was that she suggested toMiss Loxston that the meeting was an opportunity to talk to him about her wishes and the difficulties she was having. She herself saw Dr Abbott for a short time and told him that Miss Loxston was keen to sort out her affairs and had concerns that her wishes with regard to the family were carried out, but he did not seem to want to talk about this. This corresponds with his evidence. After the meeting, Miss Loxston told her that she did not know him sufficiently well to ask him for help and had not done so.

Mrs Richardson said that by January 2003 she had had enough of trying to assist Miss Loxston withthe will, and, as a result of what she had been told by Mr Rhodes in the letter of 18^th March 2002 she did not in any event think that it was possible for Miss Loxston to make an effective will without the consent of the Court of Protection. It was Miss Loxston herself who had seen “an advertisement of a will service in the local newspaper that is delivered to the house”. This is inconsistent with her evidence that by this stage the local newspaper was not delivered to the house; she brought her own local newspaper and Miss Loxston read it. Miss Loxston told her that she wanted her to get in touch with the Regent Will Service and prevailed upon her to do so. She therefore telephoned them, gave Mr Lesser Miss Loxston's details and made an appointment. When we came, she showed him in and, at the end of the visit, out. On the second occasion, 30^th January, she remembers Miss Loxston practising her signature before the meeting. She was not present at the meeting, but afterwards she recollects Mr Lesser saying that they would need to look after the will, and Miss Loxston put it in the piano. She told Mrs Richardson that she had left the house to her and the fact that she had at last made a new will pleased her no end: she was delighted. Mrs Richardson's evidence is that, at the time, she was mentally alert and knew exactly what she wanted to do, and that she had not been in any way responsible for causing her to make the will, nor had she persuaded her to do so.

In cross-examination, Mrs Richardson said that, because of Mr Rhodes' letter, she did not think thatthe will would make any difference but that, even if it did not go through, she was glad if it made Miss Loxston happy. Miss Loxston seemed to think that she was entitled to make a will if she wanted to. It was suggested to her that she had reminded Miss Loxston just before Mr Lesser's visit that the purpose was to make a will leaving her the house, and that she had provided the £55 to pay for the will herself, but she denied both suggestions. General Conclusions On The Facts

I have made a number of findings of facts on individual points earlier on in this judgment, and I nowset out some more general findings. 180. Miss Loxston

Mrs Richardson

Having regard to all the above, my overall assessment of the position is that by April 2000 MissLoxston wished to leave Mrs Richardson a substantial legacy in her will, that she was considering leaving her the house, that Mrs Richardson had said that she would like the house, and that thereafter Mrs Richardson - acting in her own interests and not, as she suggests, reluctantly doing Miss Loxston's bidding - did what she could to ensure that Miss Loxston did make a will which she knew would benefit her. However, I do not think that she was trying to get her to make a will in her favour which Miss Loxston did not wish to make. Testamentary Capacity

I was referred to the leading authority, Banks v Goodfellow (1870) LR 5 QB 549, [1861-73] All ER Rep 47, and to the familiar passage from the judgment in Lord Cockburn CJ at 565:

“it is essential . . . a testator shall understand the nature of the act and its effects; shall

understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if in the mind had been sound, would not have been made.”

I was also referred to Lord Cockburn's summary of the requirement as explained in the earlier case ofDen v Vancleve (1819) 2 Southard 589 at 567:

“a sound and disposed mind and memory . . . if [the mind and memory] have so far failed as that [all those things and all those circumstances which enter into the nature of a rational fair and just testament] cannot be discerned and judged of then he cannot be said to be of sound and disposing mind and memory”

I was also referred to the passage in Harwood v Baker(1840) 3 Moore 282 at 291, which was approved in Banks at 569:

“in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no case more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relatives from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or the injustice of the disposition might cast down some light upon the question as to his capacity.” (My emphasis).

In the light of these passages, the elements of testamentary capacity are in my view that the testatormust: -

In the present case, on the basis of Mr and Mrs Lesser's evidence, I have no doubt that, at the time ofboth the meetings in January 2003, she was able to understand the nature of the act of making a will, and that she fully understood the nature and effect of the provisions of the will which she signed.

As to her property, I find that she was aware of the house, its furnishings and its main contents,including in particular musical instruments. As to these, they were her main interest in life, and the comment about the piano at the second meeting shows her awareness in this respect. As to her remaining property, I find that she was aware that she had shares of substantial value, but no more; she did not know exactly approximately what the value was, and probably would not have known this even in earlier years.

As to the possible beneficiaries of the will, she was obviously aware of Mrs Richardson, and she had aclear intention to benefit “the family”, I find that by this she meant her cousins in Ripon (including Colin Abbott's widow). However, I do not think that she was capable of remembering all their names.

Mr Dodge made two submissions about Miss Loxston's inability to identify the individual members ofher family. First, he submitted that an inability to recollect distant cousins cannot be sufficient to affect testamentary capacity. I agree that in many cases, where the testator has closer family, this might well be the case, but not in the present case in which Miss Loxston's cousins in Ripon were her closest family, and meant much to her even though there had been little contact in the last few years. Secondly, he submitted, inability to remember did not constitute a lack of capacity. She was aware of the existence of, and wished to benefit, a defined class of relatives, namely her cousins in Ripon, and the failure to identify them was due to the way in which Mr Lesser handled the matter. I agree with this submission. I do not think that Miss Loxston's inability to remember the names of her cousins, or the fact that she mistakenly referred to John rather than Richard, affects her testamentary capacity. It is clear both from the written instructions of 10^th January 2001 and from Mr Lesser's account of the meeting on 17^th January, that she recollected that branch of the family and wished to leave her property to it, probably in equal shares. I do not think that it was right for Mr Lesser just to tell her that she must name specific members of the family. He should have asked her who the members of the family were whom she wished to benefit and, if she could not remember them all, he should have contacted the ones he was able to identify from the address book so as to obtain further details which he could then have discussed with her on a second occasion. In my view, if he had pursued the matter in this way, he would have been able to list the members of the family for Miss Loxston, and she would almost certainly have divided what she wanted to leave the family in equal shares between them. The fact that this did not happen does not seem to me to be something which should be seen as affecting her capacity to make a will.

Nor do I think that Miss Loxston's ignorance of the value of her shares affected her testamentarycapacity. There is little authority on the extent of the knowledge which a testator must have of his property for the purposes of testamentary capacity, but it seems to me that it must depend upon the nature of the disposition which he is likely to wish to consider making. In some circumstances, it might well be necessary for the testator to know the approximate value of his assets, and indeed liabilities, particularly if what he is contemplating is making a series of pecuniary legacies, the amount of which would depend upon the value of the assets available. I do not think that this is the case here. Even if Miss Loxston had been considering a wider range of beneficiaries, it is probable that she would have left a proportion of her assets to each beneficiary, and for that purpose it was quite sufficient that she knew that there were shares of substantial value.

Further, as was pointed out by Mr Michael Briggs QC in Minns v Foster, 13^th December 2002 at para 115, the question is not whether the testator actually knew the extent of his property, but whether he was capable of understanding it, and I think that Miss Loxston would have been capable of understanding the value of her shares, if she had been told what it was.

However, notwithstanding the above, I do not think that Miss Loxston was mentally capable of makinga will. This is essentially for the reasons set out in the extract from Harwood v Baker emphasised above. In my view it is not necessarily the case that a person's mental capacity diminishes to the point at which he or she is no longer capable of making a will, and that remains the static position thereafter. The question is always whether the testator had the necessary capacity at the time the will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations necessary for a “rational, fair and just testament”. In this case, I do not think that Miss Loxston was able, without assistance, to recollect, understand or focus on all the persons whom she might reasonably wish to benefit at one time, and arrive at a rational decision as

What I find must actually have happened in January 2003 is that the contents of the will werediscussed between Mrs Richardson and Miss Loxston before Mr Lesser's first visit, but such discussion must have been limited and cannot have extended to the possibility of leaving musical instruments or legacies to friends, or making gifts to charities. As to charities Mrs Richardson was unaware of the details of the previous will, and wrongly believed that Miss Loxston had no interest in giving to charity except for occasional small amounts. Mr Dodge submitted that testamentary capacity cannot depend on the ability to recall all known charities: clearly not, but in Miss Loxston's case, in view of her poor memory, it was necessary for someone to remind her of the terms of her previous will and ascertain what she now wished to do about friends and charities. Nothing of this kind took place, and without it Miss Loxston was unable to consider these kinds of legacy and therefore in my opinion lacked testamentary capacity both on 17^th January and on 30^th January 2003. Want Of Knowledge And Approval

Although in many cases capacity and want of knowledge and approval are closely related, this is notso in the present case. I find that Miss Loxston knew and understood the contents of the will, and expressly approved them.

There is no issue between the parties as to the relevant principles. I was referred to the well-knowndecisions in Hall v Hall (1868) LR 1 P & D 481, 32 JP 503 and Wingrove v Wingrove (1885) 11 PD 81, 50 JP 56. Undue influence is a form of coercion, or pressure exerted so as to overpower the will without convincing the judgment of the testator. There must be both improper pressure and the gift must be the result of that pressure. The burden of proof is on the party asserting undue influence, and-what is required is to a established is that the circumstances of the will are consistent with the hypothesis that it was obtained by undue influence, and inconsistent with a contrary hypothesis: see Re Cooper 17^th October [2005] EWHC 2389 (Ch) at para 53.

Miss McQuail submits that the numerous statements made by Miss Loxston to the effect that “Lizwants me to leave her the house”, together with the initiatives taken by Mrs Richardson over a period of some two years, and also what she said to Mr Cowan, establish that there was undue influence. She submits that Mrs Richardson must have used her daily contact with Miss Loxston and Miss Loxston's dependence on her to put constant pressure on her to leave her the house. A finding of improper pressure is easier, where the testator is enfeebled in body or mind and also if he is enfeebled in both: see Killick v Pountney [2000] WTLR 41 (31 March 1999) at p 31 per Sonia Proudman QC This, she submits, was the position with Miss Loxston.

Whilst there is force in these submissions, I do not think there was undue influence in this case. Myprincipal reasons are as follows: -

Accordingly, whilst I am sure that Mrs Richardson did everything she could, in her own interests, tocause Miss Loxston to make a will, in my view its terms represented what Miss Loxston wished to do. Conclusion

The result of the case is that the claim succeeds. I must hold that the 2003 will is invalid because MissLoxston lacked testamentary capacity. Despite what I have said about Mrs Richardson's evidence, I reach this conclusion without enthusiasm, because I am sure that it does not accord with Miss Loxston's wishes. As previously stated, I think that she did want to leave Mrs Richardson the house and that, even if she had been able with the assistance of others to focus on other possible beneficiaries such as friends and charities, she might still have wished to leave Mrs Richardson the house, and would certainly have wished to make her a substantial bequest of some kind. However, it is not in my power to give effect to her wishes. Whether Mrs Richardson benefits from Miss Loxston's estate, and if so to what extent, is solely within the discretion - of the beneficiaries.

I should like to express my thanks to both counsel, and their instructing solicitors, for the clear andconcise way in which this case was presented. If the parties are able to agree the terms of an order, or if they are able to deal with any disputed matters by written submissions, there will be no need for anyone to attend when judgment is handed down. The terms of the judgment may be discussed with the parties, but otherwise are to remain confidential until it has been handed down.